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Motor Vehicle Dealer Board v. Barton

Court of Appeals of Virginia

December 10, 2013

MOTOR VEHICLE DEALER BOARD, COMMONWEALTH OF VIRGINIA
v.
DAVID BARTON

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge

Eric K. G. Fiske, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellant.

Jeanne S. Lauer (Inman & Strickler, P.L.C., on brief), for appellee.

Present: Judges Alston, McCullough and Senior Judge Clements Argued at Chesapeake, Virginia

MEMORANDUM OPINION [*]

ROSSIE D. ALSTON, JR. JUDGE

The Motor Vehicle Dealer Board (the Board) appeals an order of the Circuit Court of the City of Virginia Beach (the circuit court) holding that the circuit court's May 29, 2008 default judgment order was valid and satisfied the statutory criteria necessary to form a compensable claim against the Motor Vehicle Recovery Fund (the Fund).[1] The Board contends that the circuit court erred: 1) in entering a default judgment based on facts not pled in David Barton's complaint; 2) reversing the Board's finding that the default judgment did not meet the statutory criteria to form a compensable claim against the Fund; 3) reversing the Board's finding that the default judgment was not based on fraud in connection with the purchase of a motor vehicle; and 4) awarding attorney's fees to Barton pursuant to Code § 2.2-4030. For reasons that follow, we affirm in part and reverse in part.

I. Background [2]

"When reviewing a circuit court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Congdon v. Congdon, 40 Va.App. 255, 258, 578 S.E.2d 833, 835 (2003). So viewed, the evidence is as follows.

In October 2006, Barton agreed to purchase a vehicle from TLT Exports, a car dealership owned by Terry Timmerman, for a purchase price of $41, 600. Shortly thereafter, Timmerman informed Barton that the vehicle was acquired at auction and would be retrieved by Timmerman in the following weeks. Later, after inspecting the vehicle, Timmerman expressed concern that the car suffered flood damage. He promised to find Barton a suitable replacement, and the parties agreed that the funds Barton advanced would be carried over to the replacement vehicle.

On January 11, 2007, Timmerman informed Barton that a new vehicle had been acquired at auction in Florida. He provided Barton with regular updates throughout the month of January, informing Barton that the vehicle was being inspected, processed, and retrieved. On January 31, 2007, Timmerman became a licensed dealer with the Department of Motor Vehicles.

Barton continued to receive updates and assurances from Timmerman through March of 2007, but had yet to receive the vehicle or its title. Finally, on April 14, 2007, Barton requested a refund of his $41, 600, which Timmerman agreed to provide. Timmerman never returned Barton's funds.

On November 14, 2008, Barton initiated a lawsuit against Timmerman and TLT Exports. Barton's complaint raised a cause of action for fraud.[3] He alleged that Timmerman took Barton's funds "knowing that the first vehicle did not exist, . . . and retained [those] funds for a new purchase in January 2007 which was never actually made by Timmerman." Barton also alleged that Timmerman also "knew or should have known that [the] funds were not being sent to obtain the vehicle." Finally, Barton alleged that he relied on Timmerman's "continuing representations . . . that the funds . . . were funding the car's acquisition" and that he suffered damages as a result of Timmerman's misrepresentations.

Timmerman did not respond to Barton's complaint. Thereafter, Barton filed a motion for default judgment with the circuit court, which he forwarded to the Board. At the hearing on his motion, Barton supplemented the information in his complaint with oral testimony regarding his claim against Timmerman. Despite notice, the Board did not appear at the hearing on Barton's motion.

The circuit court granted Barton's motion for default judgment. The circuit court's order stated, in part, that "1. [Timmerman] at all relevant times was a licensed motor vehicle dealer; 2. The loss sustained by [Barton] on or about February 15, 2007, [was] the direct result of fraud and fraudulent representations made by [Timmerman, a] licensed dealer during the time of ...


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