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Ballagh v. Fauber Enters., Inc.

Supreme Court of Virginia

June 4, 2015

DEBRA A. BALLAGH
v.
FAUBER ENTERPRISES, INC., ET AL

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG. F. Patrick Yeatts, Judge.

Brandon S. Osterbind (Overbey, Hawkins & Wright, on briefs), for appellant.

Gregory P. Cochran (Eric E. Harrison; Caskie & Frost, on brief), for appellees Fauber Enterprises, Inc. and Bernard M. Fauber, Jr.

No brief filed by appellees Alice Smith and The Realty Group of Lynchburg, LLC.

Amicus Curiae: Commonwealth of Virginia (Mark R. Herring, Attorney General; Cynthia E. Hudson, Chief Deputy Attorney General; Rhodes B. Rhitenour, 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 support of appellant.

Amici Curiae: Legal Services of Northern Virginia, Virginia Poverty Law Center, National Association of Consumer Advocates, Virginia Trial Lawyers Association, and National Consumer Law Center (Dipti Pidikiti-Smith; Thomas D. Domonoske; Susan Stoney; Legal Services of Northern Virginia, on brief), in support of appellant.

OPINION

Page 367

PRESENT: All the Justices

 WILLIAM C. MIMS,  JUSTICE

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. 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 ยง ...


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