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Owens v. DRS Auto. Fantomworks, Inc.

Supreme Court of Virginia

October 31, 2014



George A. Somerville (Troutman Sanders, on briefs), for appellants.

Gregory N. Stillman (Hunton & Williams, on brief), for appellees.

Amicus Curiae: Commonwealth of Virginia (Mark R. Herring, Attorney General; Cynthia E. Hudson, Chief Deputy Attorney General; Rhodes B. Ritenour, Deputy Attorney General; David B. Irvin, Senior Assistant Attorney General; Richard S. Schweiker, Jr., Senior Assistant Attorney General; Stephen J. Sovinsky, Assistant Attorney General, on brief) in supprt of appellants.

PRESENT: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and Powell, JJ., and Russell, S.J.


Page 257


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 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 [288 Va. 493] 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

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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 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 Short on July 13, 2012 for a price of $6,000. Both parties signed the recorded transfer at the bottom of the certificate.[1]

[288 Va. 494] 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 series of additional items, including rust repair, interior fabrics, finish, and ...

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