Devine, Donald v. Buki ( 2015 )

  • PRESENT:   Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and
               Powell, JJ., and Lacy, S.J.
                                                  OPINION BY
    v.   Record No. 140301                 JUSTICE CLEO E. POWELL
                                               JANUARY 8, 2015
                       Harry T. Taliaferro, III, Judge
           Donald M. Devine, Jr. (“Donald”) appeals the judgment of
    the trial court rescinding the sale of the property known as
    Rock Hall to Charles Z. Buki (“Buki”) and Kimberly A. Marsho
    (“Marsho”).   He further appeals the trial court’s award of
    consequential damages and attorney’s fees.    Buki and Marsho
    assign cross-error to the trial court’s denial of their claim
    under the Virginia Consumer Protection Act (“VCPA”), Code §
    59.1-196, et seq., and their request for attorney’s fees.
                               I.   BACKGROUND
           Rock Hall is a wood frame house that is more than 200 years
    old.   The main structure of the house is supported by a large
    wood beam (the “foundation sill”) resting on a masonry wall.      In
    March, 2004, Rock Hall was bought by Acorn Properties, a company
    owned by Donald.   In January, 2005, Acorn Properties transferred
    ownership of Rock Hall to Donald and his wife, Nancy W. Devine
         Donald subsequently began the process of renovating and
    restoring Rock Hall.    Donald performed some of the work by
    himself and hired contractors to do the rest.    In June, 2005,
    Shannon Swindell (“Swindell”) was hired by Donald to remove the
    aluminum siding and re-paint the original wooden siding found
    underneath.    According to Swindell, all of the siding appeared
    to be old and there were no new boards on the bottom of the
    house.   Donald also hired Danny Beall (“Beall”) to perform a
    number of tasks, including rebuilding the front and rear
    porches; reframing, insulating and rehanging sheetrock on the
    interior walls; repainting the living room; installing three new
    bathrooms and a kitchen; and some masonry work.    Beall did not
    do any work on the wooden siding or corner posts of Rock Hall.
         In December, 2006, Donald decided to sell Rock Hall to
    generate the cash necessary to purchase another property.
    Donald listed Rock Hall for sale with Rebecca Lemmon (“Lemmon”),
    a local realtor.    Lemmon, with Donald’s input, created
    promotional literature that was given to potential buyers,
    including Buki and Marsho.    The promotional literature stated:
             •   Rock Hall had been “completely restored;”
             •   Rock Hall’s foundation had been restored;
             •   Rock Hall was “completely renovated and restored
                 between 2004 and 2005 from the wood plank floors and
                 molding to the portico, and from the brick foundations
                 to the roof and chimney.”
    The promotional literature also cautioned that the information
    was provided by the seller and deemed accurate, but it was not
         On January 22, 2007, Buki and Marsho signed a contract
    agreeing to purchase Rock Hall for $590,000 (the “Real Estate
    Contract”).   The Real Estate Contract included a “Disclaimer
    Statement” which stated that the owners made no representations
    or warranties as to the condition of the property and the
    purchaser would be receiving the property “‘as is’ . . . with
    all defects which may exist, if any, except as otherwise
    provided in the real estate purchase contract.”
         On February 2, 2007, William Knight (“Knight”), a home
    inspector, inspected the property with Buki and Marsho present.
    He noticed that some of the window frames were warped, allowing
    air to enter.   As a result, Knight determined that the windows
    and siding were only in “marginal” condition, meaning that they
    were “functional” but required “immediate maintenance” and
    likely would need to be replaced within five years.
    Additionally, he found a water stain and mold forming on the
    living room ceiling.   Knight also noted some moisture damage in
    the basement and some evidence of boring insect damage to the
    rear sill.    Overall, however, he “told [Buki and Marsho] that he
    found nothing that would cause him to tell a potential purchaser
    not to buy Rock Hall.”
         Due to Knight’s report, Buki and Marsho had Jeffrey T. Cox,
    Sr. (“Cox”), perform a subsequent inspection on the property,
    focusing primarily on the insect damage.    Cox also noted the
    moisture and insect damage in the basement.    However, according
    to Cox, the termite damage was limited to one basement window
    and a baseboard.   Cox stated that, based on what he could see at
    the time, there was no evidence of termite damage anywhere else
    in the house or that there was an active termite infestation in
    the home.   Regarding the moisture damage, Cox stated that it was
    not out of the ordinary for that area.
         On February 4, 2007, an addendum was added to the Real
    Estate Contract.   In the addendum, Buki and Marsho requested a
    number of repairs based on the results of the home inspection.
    Referring to the stain on the living room ceiling, Buki and
    Marsho requested that Donald and Nancy “find [the] source of
    [the] moisture and repair/replace.    Treat mold and
    paint/repair.”   Lemmon informed Buki and Marsho’s agent that the
    stain on the living room ceiling was caused by a window being
    left open during Hurricane Ernesto, which struck the area on
    September 1, 2006.   The stain was repaired and painted.
         The real estate closing occurred on March 9, 2007.    Shortly
    thereafter, Buki and Marsho noticed water leaking from the east
    wall and the east- and south-facing windows when there was wind-
    driven rain from the east or south.    They also noticed water
    leaking from the living room ceiling.    Buki and Marsho hired Tom
    Brown (“Brown”) to install new windows.    Brown discovered mold
    and sheet rock damage around all of the windows on the east
    wall.    According to Brown, the damage was not from a single
    event, but likely had been on-going for some time.
    Additionally, Brown discovered that the exterior siding had
    significant cracks and recommended that it be replaced.    He
    recommended another contractor, Bruce Stanley (“Stanley”).
            On September 4, 2007, Brown and Stanley inspected the
    siding of Rock Hall.    They noticed that the lower courses of
    siding, as well as portions of the corner posts, had been
    replaced with new material.    After removing the lower courses,
    they discovered that the foundation sill and corner boards were
    substantially damaged by rot and termite damage.    As a result,
    the structural integrity of the house was significantly
            On December 6, 2007, Buki and Marsho brought suit against
    Donald and Nancy.    Buki and Marsho alleged that Donald and Nancy
    fraudulently induced them to enter into the Real Estate Contract
    and to close on Rock Hall by misrepresenting and concealing the
    true condition of Rock Hall.    Initially, they only sought
    rescission of the Real Estate Contract or, in the alternative,
    compensatory damages for replacement of the windows and repairs
    to the sill.    In their second amended complaint, they added a
    claim under the VCPA.
            The trial court referred the matter to a commissioner in
    chancery.    After holding an evidentiary hearing, the
    commissioner found that Buki and Marsho had been fraudulently
    induced into entering the Real Estate Contract and closing on
    Rock Hall.    He further determined that Buki and Marsho were
    entitled to rescission of the Real Estate Contract and damages
    in the amount of $163,099.79, representing the cost of the
    replacement windows ($27,970.38), the interest Buki and Marsho
    paid on their first ($106,936) and second ($17,667) mortgages on
    the property, the property insurance expended by Buki and Marsho
    ($4,301.41), and the real estate taxes Buki and Marsho paid on
    the property ($6,225).     Finding that the fraud was a willful
    violation of the VCPA, the commissioner doubled the damages
    pursuant to Code § 59.1-204(A) and awarded attorney’s fees and
    costs pursuant to Code § 59.1-204(B).     As the damages were
    doubled under the VCPA, the commissioner declined to award
    punitive damages.
            Donald and Nancy filed several exceptions to the
    commissioner’s report.     After considering the matter, the trial
    court determined that there was sufficient evidence to find that
    Donald had fraudulently induced Buki and Marsho to buy Rock
    Hall.    The trial court focused on the false statements in the
    promotional literature, the concealment of the damage to the
    sill and misrepresentation as to the source of the living room
    ceiling stain.
           However, the trial court also found that Buki and Marsho
    had failed to allege or prove that Nancy had committed any
    fraudulent acts.   The trial court noted that there was no
    evidence that Nancy took any part in the fraud, aside from
    signing the Real Estate Contract and the other documents
    pertaining to the sale of Rock Hall.   The trial court pointed
    out that the commissioner made no findings with regard to Nancy
    or attributed any fraud, misrepresentation or concealment to
    her.   The trial court determined that, at most, Nancy “reaped
    the benefit” of the sale of Rock Hall.
           Ultimately, the trial court granted rescission of the Real
    Estate Contract.   Although it found that there was no evidence
    Nancy committed any fraud, the trial court determined that it
    would be fair and equitable to require her “to be responsible
    jointly and severally with her husband for the repayment of the
    purchase price” of Rock Hall.   The trial court noted that, upon
    repayment, Donald and Nancy would receive Rock Hall and,
    therefore, be returned to the status quo ante.    In conjunction
    with awarding rescission, the trial court also awarded
    prejudgment interest on the purchase price of Rock Hall, running
    from the date of closing.
         The trial court also affirmed, in large part, the
    commissioner’s decision to award consequential damages.
    However, the trial court determined that Buki and Marsho should
    not be reimbursed for the replacement windows.   According to the
    trial court, by replacing the windows instead of immediately
    bringing an action for rescission, Buki and Marsho were limited
    to seeking actual damages for the money they expended on the
    windows.   The trial court noted that Buki and Marsho had dropped
    their claim for actual damages, therefore, the trial court
    decided it would be inequitable to award consequential damages
    for the window replacement.   Furthermore, in light of the fact
    that there was no evidence that Nancy had committed any wrong,
    the award of consequential damages was only a judgment against
         The trial court initially affirmed the commissioner’s
    decision to double the consequential damages and award
    attorney’s fees under the VCPA.   However, upon a motion for
    reconsideration, the trial court reasoned that the damages
    contemplated by the VCPA did not include the consequential
    damages awarded in this case because the consequential damages
    were awarded as part of the award of rescission.   The trial
    court further noted that Buki and Marsho did not actually
    incorporate the consequential damages sought in their rescission
    claim as part of their VCPA claim.    Therefore, the trial court
    reversed its decision as to the VCPA claim.      Similarly, the
    trial court reversed the award of attorney’s fees under the
    VCPA.    However, it reinstated those fees “based on fraud and not
    pursuant to the VCPA.”
            In response to the trial court’s denial of damages under
    the VCPA, Buki and Marsho moved the trial court to reconsider
    the commissioner’s ruling on punitive damages.     After hearing
    argument on the matter, the trial court affirmatively stated
    that it considered the matter, but stood by its decision to not
    grant punitive damages.
            On November 21, 2013, the trial court entered its final
    order on the matter.     The trial court
              •   Ordered Donald and Nancy to refund the “purchase price
                  of $590,000 with interest at the statutory rate from
                  the date of closing (March 9, 2007) until fully paid;”
              •   Ordered Buki and Marsho to reconvey the property to
                  Donald and Nancy upon refund of the purchase price;
              •   Entered judgment against Donald in the amount of
                  $135,129.41 “for consequential damages together with
                  interest . . . plus attorney’s fees and related
                  expenses in the amount of $98,575.66.”
            This appeal followed.
                                    II.   ANALYSIS
            On appeal, Donald contends that the trial court lacked
    jurisdiction to enter a decree against him.      He further argues
    that Buki and Marsho failed to prove that he fraudulently
    induced them to purchase Rock Hall and that the trial court
    erred in awarding consequential damages, attorney’s fees and
    prejudgment interest.   In their assignments of cross-error, Buki
    and Marsho assert that the trial court erred in dismissing their
    VCPA claim and in not awarding punitive damages.
                             A.    JURISDICTION
         Donald’s first argument concerns the trial court’s
    “equitable jurisdiction.”     Specifically, Donald argues that,
    because Buki and Marsho failed to prove that Nancy committed any
    fraud, the trial court lost its jurisdiction to award the
    equitable remedy of rescission against him.    In making this
    argument, Donald primarily relies on Larkey v. Gardner, 
    105 Va. 718
    54 S.E. 886
     (1906), where this Court held:
              Where the bill alleges proper matter for the
              jurisdiction of a court of equity, so that a
              demurrer will not lie, if it appears on the
              hearing that the allegations are unfounded,
              and that such matter does not in fact exist,
              the result must be the same as if it had not
              been alleged, and the bill should be
              dismissed for want of jurisdiction.
    Id. at 722, 54 S.E. at 887.
         Donald, however, takes this holding out of context.    We
    have explained that Larkey only stands for the limited notion
    that a circuit court lost “equitable jurisdiction” when it was
    revealed that the equitable remedy sought was merely a pretext
    to bring an action at law in a chancery court.     See Iron City
    Sav. Bank v. Isaacsen, 
    158 Va. 609
    , 626, 
    164 S.E. 520
    , 525
    (1932).      We note, however, that with the abolition of “sides of
    court” and repeal of former Code § 8.01-270, the jurisdiction
    question at issue in Larkey does not arise in the same fashion
    today.       See 2005 Acts ch. 681.   There is also no evidence in the
    record, nor does Donald argue, that the relief sought by Buki
    and Marsho was a pretext to bring an action at law in a court of
    chancery.      Therefore, Larkey is simply inapposite to the present
    case.       Moreover, Donald has not cited, nor can we locate, any
    authority supporting the notion that, when a plaintiff seeks
    equitable relief against two defendants but only makes out a
    case for relief against one, the trial court somehow loses
    jurisdiction over the matter or would be barred from entering
    relief against the party as to whom proper grounds for relief
    was established. 1
            Furthermore, we have recognized that, in awarding
    rescission, “[i]t is immaterial that the status quo cannot be
    literally restored.”       Millboro Lumber Co. v. Augusta Wood
    Products Corp., 
    140 Va. 409
    , 421, 
    125 S.E. 306
    , 310 (1924).
           Donald’s reliance on Hurst v. Williams, 
    157 Va. 124
    160 S.E. 24
     (1931), is similarly unavailing. In Hurst, this Court
    confirmed that, in the absence of a showing of fraudulent
    conduct by the wife, “there could be no personal judgment
    against [her].” Id. at 130-31, 160 S.E. at 27. However, the
    Court then returned the case to the trial court so that
    appropriate decrees could be imposed against the husband. Id.
    at 131, 160 S.E. at 27.
    Rather, the trial court need only “be able substantially to
    restore the parties to the position they occupied before
    entering into the contract.”   Id. (emphasis added).   Thus, when
    awarding rescission, “the aim of equity is to award complete,
    just and equitable relief, with a view to restoring the parties
    to the status quo and equitably adjusting their interests under
    the circumstances of the case.”    Newton v. Newton, 
    199 Va. 654
    101 S.E.2d 580
    , 585 (1958) (emphasis added).
         Ultimately, the fact that Donald and Nancy originally owned
    Rock Hall as tenants by the entirety has no bearing on whether a
    remedy can be granted as to Donald alone.   Indeed, as far as
    equity is concerned, their ownership as tenants by the entirety
    was extinguished when they executed the Real Estate Contract.
    See Ferry v. Clarke, 
    77 Va. 397
    , 407 (1883) (“[A]s soon as a
    contract is made for the sale of an estate, equity considers the
    buyer as the owner of the land, and the seller as the trustee
    for him.”).
         Additionally, the rescission of the Real Estate Contract
    does not restore the tenancy by the entirety.   We have long
    recognized that the title to real property is transferred by the
    deed, whereas the contract preceding the execution of the deed
    merely requires that the deed be delivered.   See Miller v.
    216 Va. 852
    , 855, 
    223 S.E.2d 883
    , 885 (1976) (“A deed
    is a mere transfer of title, a delivery so to speak of the
    subject-matter of the contract.”).   Once the deed is conveyed,
    the provisions of the underlying contract governing the transfer
    of the property are extinguished.    See Beck v. Smith, 
    260 Va. 452
    , 455, 
    538 S.E.2d 312
    , 314 (2000) (“Under the doctrine of
    merger, provisions in a contract for sale are extinguished and
    merged into the deed, an instrument of higher dignity.”).     Thus,
    because the provisions governing the transfer of ownership have
    been extinguished and merged into the deed, rescission of the
    underlying contract does not automatically transfer ownership of
    real property back to the original owners.   In other words,
    ownership of Rock Hall did not automatically revert to Nancy and
    Donald as tenants by the entirety when the trial court granted
         Rather, it is through the trial court’s exercise of
    discretion in fashioning its award that ownership is
    transferred.   In exercising such discretion, this Court has
    recognized that a trial court can adjust the interests of the
    parties as the circumstances of the case demand, see Newton, 199
    Va. at 660, 101 S.E.2d at 585, and “fashion a remedy that would
    eliminate or lessen the hardship imposed upon a party by a
    particular decision.”   Frank Shop v. Crown Cent. Petroleum
    264 Va. 1
    , 7, 
    564 S.E.2d 134
    , 137 (2002).   Accordingly,
    the fact that Buki and Marsho failed to prove their claim
    against Nancy does not remove the trial court’s jurisdiction
    over Donald; it simply prevents the trial court from entering an
    award against Nancy.     It is still within the trial court’s
    discretion to “adjust” the interests of the parties such that
    Donald, as the sole wrongdoer, is solely responsible for
    refunding the purchase price in return for his sole ownership of
    Rock Hall.
                      B.   FRAUDULENT INDUCEMENT
            Donald next argues that the trial court erred in awarding
    rescission because Buki and Marsho failed to properly plead or
    prove that Donald fraudulently induced them to purchase Rock
    Hall.    Donald contends that his statements about the stain on
    the living room ceiling were made pursuant to a contractual
    obligation and, therefore, they could only be the basis of a
    breach of contract action, not a fraud claim.    He further claims
    that the advertisements Buki and Marsho allegedly relied on in
    purchasing Rock Hall do not serve as a legitimate basis for a
    fraud claim because Buki and Marsho did not and could not, as a
    matter of law, have relied on those advertisements.    Finally,
    Donald asserts that he had no duty to reveal the damage to the
    foundation because the Disclaimer Statement in the Real Estate
    Contract specifically informed Buki and Marsho that they were
    buying Rock Hall “‘as is,’ that is, with all defects which may
    exist.”    We disagree with this last argument and, therefore,
    need not address the first two arguments.
                In the present case, Donald does not dispute the trial
    court’s finding that he concealed the damage to the foundation
    sill.       Rather, his argument focuses on the fact that Buki and
    Marsho did not allege that his concealment induced them to enter
    into the contract, only to go to closing. 2      He contends that, at
    that point, Buki and Marsho had already entered into the Real
    Estate Contract, therefore, the Disclosure Statement absolved
    him of any duty to inform them of the condition of the
    foundation sill.       We disagree.
            In Ware v. Scott, 
    220 Va. 317
    , 320, 
    257 S.E.2d 855
    , 857
    (1979), we recognized that “[a]n action for fraudulent
    inducement need not . . . be limited to formation of the
    contract.”       Accordingly, we held that “performance of an
    executory contract may be fraudulently induced.”        Id. (emphasis
    omitted).       We also specifically recognized that “fraudulent
    inducement to perform may arise when one party induces the other
    to perform by concealing some fact which excuses performance by
    the latter.”        Id. at 320, 257 S.E.2d at 857 (collecting cases)
    (emphasis added).       Furthermore, as the present case
    demonstrates, the concealment that induces a party to perform
    may exist prior to the contract being performed.       Regardless of
           In their complaint, Buki and Marsho alleged that they
    “changed their position as a result of [Donald’s] concealment
    and fraud regarding the deteriorated sill to their detriment by
    closing on the property.” (Emphasis added.)
    when the concealment occurs (i.e., before or after the contract
    has been entered into), the wrong is still the same.    Therefore,
    unlike fraudulent inducement to contract, where the concealment
    must necessarily precede the formation of the contract, the
    concealment at issue in a fraudulent inducement to perform claim
    may occur either before or after the contract has been entered
            As with a fraudulently induced contractual agreement, where
    the performance of a contractual agreement is fraudulently
    induced, “the entire instrument -- the whole contract -- is
    rendered voidable at the instance of the defrauded party.”
    Packard Norfolk, Inc. v. Miller, 
    198 Va. 557
    , 564, 
    95 S.E.2d 207
    , 212 (1956).    Furthermore, “[a] seller may not rely upon and
    claim the benefits of a contract and at the same time through
    that instrument contract against and relieve himself of the
    consequences of his fraud that induced the other party.”     Id.
    In other words, the entire contract is rescinded including any
    language indicating that the sale was made “as is.”     See George
    Robberecht Seafood, Inc. v. Maitland Bros. Co., 
    220 Va. 109
    255 S.E.2d 682
    , 683 (1979) (“A buyer can show that a
    contract of sale was induced by the seller's fraud,
    notwithstanding the fact the sale was made ‘as is.’”).    This is
    because such disclaimer language “‘stands no higher than the
    contract which is vitiated by the fraud.’”      Id. (quoting Packard
    Norfolk, 198 Va. at 565, 95 S.E.2d at 213).
         Here, as previously noted, Donald concealed the condition
    of the foundation sill.     “If a party conceals a fact that is
    material to the transaction, knowing that the other party is
    acting on the assumption that no such fact exists, the
    concealment is as much a fraud as if the existence of the fact
    were expressly denied, or the reverse of it expressly stated.”
    Clay v. Butler, 
    132 Va. 464
    , 474, 
    112 S.E. 697
    , 700 (1922).
    Accordingly, the trial court did not err in granting rescission
    based on Donald’s fraudulent concealment of the damage to the
    foundation sill.
                           C.    MONETARY DAMAGES
         Donald argues that the trial court erred in awarding
    consequential damages and attorney’s fees in addition to
    granting rescission.   Specifically, Donald takes issue with the
    trial court’s decision to reimburse Buki and Marsho for the
    interest they paid on the mortgages they took out on the
    property, the taxes they paid on the property and the property
    insurance they had on the property.    He further claims that the
    trial court should not have awarded Buki and Marsho their
    attorney’s fees.
                          1.   CONSEQUENTIAL DAMAGES
         Addressing the consequential damages first, Donald argues
    that the trial court’s monetary award, in addition to granting
    rescission, was erroneous.    Donald notes that, under the facts
    of this case, the purpose of the consequential damages was to
    reimburse Buki and Marsho for expenses they paid to third
    parties and not for any benefits they bestowed upon him.
    Therefore, he contends that the award of consequential damages
    goes above and beyond the award of rescission sought by Buki and
    Marsho.   We agree.
         Rescission is the abrogation or annulling of a contract.
    See Chamberlaine v. Marsh, 20 Va. (6 Munf.) 283, 287 (1819).
    “If rescission is granted, the contract is terminated for all
    purposes, and the parties are restored to the status quo ante.”
    McLeskey v. Ocean Park Investors, Ltd., 
    242 Va. 51
    , 54, 
    405 S.E.2d 846
    , 847 (1991).    As previously stated, rescission only
    requires that the parties be restored to “substantially” the
    same position they occupied before entering into the contract.
    Millboro Lumber, 140 Va. at 421, 125 S.E. at 310.
               [W]here, on account of the act of the
               adverse party, complete restitution cannot
               be had, rescission will not be denied and
               the court will, so far as practicable,
               require the party profiting by the fraud to
               surrender the benefit he has received in the
    Id. (collecting authorities) (emphasis added).
         Thus, we have expressly limited the amount of restitution
    to the amount of benefit received by the adverse party.   A party
    seeking restitution beyond that amount is required to bring a
    separate cause of action for damages resulting from the
    fraudulent inducement.   Indeed, we have specifically recognized
    that, in a suit for rescission of real estate, “‘[i]nterest on
    the amount paid by the plaintiffs is recoverable only as damages
    for the wrongful detention of the money by the defendant.’”      Lee
    v. Laprade, 
    106 Va. 594
    , 602, 
    56 S.E. 719
    , 722 (1907) (quoting
    Talbot v. Bank, 
    129 Mass. 67
    , 70 (1880)) (emphasis added).
         In the present case, there is no evidence that Donald
    received any benefit from Buki and Marsho beyond the sale price
    of Rock Hall.   Obviously, he did not receive any benefit from
    Buki and Marsho paying interest on their mortgages or from their
    payment of their property taxes and property insurance.   These
    payments were not made to him, but to unrelated third parties.
         Further, the consequential damages awarded to Buki and
    Marsho relate to matters that, under the facts of this case, are
    only indirectly related to the trial court’s award of
    rescission.   The trial court’s award only voided the Real Estate
    Contract; it had no bearing on the mortgages taken out by Buki
    and Marsho.   The mortgages still exist and, therefore, Buki and
    Marsho are still required to pay interest on them.
    Additionally, the effect of the trial court’s order was not to
    immediately void the Real Estate Contract; rather, Buki and
    Marsho will continue to own Rock Hall until Donald pays them the
    purchase price plus interest.   Only then will Rock Hall be
    reconveyed.   During the interim, Buki and Marsho will still be
    required to pay taxes on the property.   They will also likely be
    required to carry insurance on the property.   Thus, the
    consequential damages are not restitution related to the
    rescission; rather, they are more akin to an award of
    compensatory damages.   As Buki and Marsho abandoned their claim
    for such damages, it was error for the trial court to have
    awarded them such damages in the form of consequential damages.
                            2.   ATTORNEY’S FEES
         Donald next claims that the trial court erroneously awarded
    attorney’s fees pursuant to the Real Estate Contract.   According
    to Donald, Buki and Marsho only requested attorney’s fees “as
    provided by the [Real Estate Contract].”   Donald asserts that
    the Real Estate Contract cannot serve as a valid basis for the
    award of attorney’s fees because it was ultimately rescinded.
    If Buki and Marsho’s request for attorney’s fees was limited to
    the Real Estate Contract, Donald’s argument would likely be
    correct.   See Bank of Giles County v. Mason, 
    199 Va. 176
    , 180,
    98 S.E.2d 905
    , 907 (1957) (holding that “no relief should be
    granted that does not substantially accord with the case as made
    in the pleading”).   However, Donald overlooks the fact that Buki
    and Marsho did not only request attorney’s fees pursuant to the
    Real Estate Contract.      Rather, Buki and Marsho also requested
    attorney’s fees independent of any individual claim. 3
         This Court has repeatedly recognized that, “in a fraud
    suit, a chancellor, in the exercise of his discretion, may award
    attorney’s fees to a defrauded party.”      Prospect Dev. Co. v.
    258 Va. 75
    , 92, 
    515 S.E.2d 291
    , 301 (1999).         Here,
    the trial court was clearly exercising its discretion when it
    stated that it was awarding attorney’s fees “based on fraud.”
    Donald has made no showing that the trial court abused its
    discretion.    Accordingly, the trial court did not err in
    awarding attorney’s fees.
                          D.    PREJUDGMENT INTEREST
         Donald contends that the trial court erred in awarding
    prejudgment interest because Buki and Marsho failed to
    specifically request it in their pleadings.        We agree.
         Code § 8.01-382 4 authorizes a trial court to award
    prejudgment interest.      This Court has recognized that Code §
           Specifically, in the    prayer for relief in their second
    amended complaint, Buki and    Marsho requested that the trial
    court provide, “with regard    to any count, for a recovery of
    their reasonable attorney’s    fees incurred herein.”
             Code § 8.01-382 states, in relevant part:
                In any . . . action at law or suit in
                equity, the final order, verdict of the
                jury, or if no jury the judgment or decree
                of the court, may provide for interest on
    8.01-382 “leaves the assessment of interest in the discretion of
    the fact-finder.”    J.W. Creech, Inc. v. Norfolk Air Conditioning
    237 Va. 320
    , 325, 
    377 S.E.2d 605
    , 608 (1989).   However,
    although the award of prejudgment interest is discretionary, it
    is still “part of the actual damages sought to be recovered.”
    Dairyland Ins. Co. v. Douthat, 
    248 Va. 627
    , 631, 
    449 S.E.2d 799
    801 (1994) (internal quotation marks omitted) (collecting
    cases).   As such, prejudgment interest, like other damages, must
    be requested in a pleading before it can be awarded by a trial
    court.    See Davis v. Beury, 
    134 Va. 322
    , 354, 
    115 S.E. 527
    (1923) (“[I]nterest prior to verdict or decree, if recoverable
    at all, would be recoverable as special damages, and hence would
    have to be specially alleged in order to be recoverable.”).
         In the present case, Buki and Marsho’s second amended
    complaint contains no request for prejudgment interest.   As “a
    plaintiff cannot recover more than he sues for,” Powell v.
    Sears, Roebuck & Co., 
    231 Va. 464
    , 469, 
    344 S.E.2d 916
    , 919
    (1986), the trial court erred in awarding prejudgment interest
    on the sale of Rock Hall.
               any principal sum awarded, or any part
               thereof, and fix the period at which the
               interest shall commence.
                                E. CROSS ERROR
            In their assignments of cross-error, Buki and Marsho take
    issue with the trial court’s refusal to multiply the
    consequential damages under the VCPA and its denial of punitive
    damages.    With regard to their VCPA claim, Buki and Marsho
    contend that the trial court erred in determining that
    consequential damages were not a form of loss that could be
    doubled under the VCPA.     However, in light of our above decision
    reversing the award of consequential damages, this issue is
            Buki and Marsho next argue that the trial court erred in
    failing to award punitive damages after it struck their VCPA
    claim.    According to Buki and Marsho, “it was clear error for
    the trial court to fail to impose equivalent damages on [Donald]
    as punitive damages.”     We disagree.
            “A punitive damages award is generally left to the
    [factfinder’s] discretion because there is no set standard for
    determining the amount of punitive damages.”     Coalson v.
    287 Va. 242
    , 249, 
    754 S.E.2d 525
    , 528 (2014).       As such
    an award is entirely discretionary, Buki and Marsho are required
    to demonstrate the trial court abused its discretion in failing
    to award punitive damages.     Here, Buki and Marsho fail to raise
    any argument indicating that such an abuse of discretion
    occurred.   Accordingly, we will not reverse the decision of the
    trial court on this issue.
                             III.   CONCLUSION
         For the foregoing reasons, we will affirm the judgment of
    the trial court granting rescission of the Real Estate Contract
    and its award of attorney’s fees.     Furthermore, no abuse of
    discretion has been shown regarding the circuit court's refusal
    to award punitive damages in this case.      However, we will
    reverse the trial court’s award of consequential damages and
    prejudgment interest.   Accordingly, we will remand the matter to
    the trial court for further proceedings not inconsistent with
    this opinion or the opinion expressed in the companion case of
    Nancy W. Devine v. Charles Z. Buki, et al., ___ Va. ___, ___
    S.E.2d ___ (2015) (this day decided).
                                                        Affirmed in part,
                                                        reversed in part,
                                                        and remanded.
    JUSTICE McCLANAHAN, concurring in part and dissenting in part.
         While agreeing with Parts II.B. through E. of the majority
    opinion, I disagree with the analysis and conclusions regarding
    the issue of rescission in Part II.A.    I would affirm the
    circuit court in fully rescinding the subject real estate
    contract, and ordering repayment of the purchase price by Donald
    and Nancy Devine in exchange for the reconveyance of the subject
    property by the appellees.
            The Devines, as husband and wife, acquired the property "as
    tenants by the entirety with right of survivorship as at common
    law."    Accordingly, it was in that capacity that they
    subsequently conveyed the property to the appellees under the
    terms of the contract.    Upon the circuit court finding in this
    case that Donald fraudulently induced the appellees to both
    enter into the contract to purchase the property and to close on
    the sale, the court ordered, inter alia, the following: (i) the
    contract was rescinded, (ii) the Devines "shall refund to the
    [appellees] their purchase price," and (iii) upon "receipt of
    such refund," the appellees "shall reconvey the property to
    Donald W. Devine, Jr. and Nancy W. Devine, husband and wife, as
    tenants by the entireties with the right of survivorship as at
    common law."
            The majority opinion purports in its conclusion to affirm
    the circuit court's rescission of the contract.    In Part II.A.,
    however, the majority makes clear that it is only approving
    partial rescission, i.e., rescission of the contract "as to
    Donald alone"; that the property is to be reconveyed "sole[ly]"
    to Donald; and that Donald is "solely responsible for refunding
    the purchase price."    These holdings arise from the majority's
    determination that ownership of the property did not
    "automatically revert to Nancy and Donald as tenants by the
    entirety" upon rescission of the contract - or indeed to Nancy
    at all.   I disagree.
         In holding title to the property as tenants by the
    entirety, Donald and Nancy were deemed in this "unity" of
    marital ownership to have possessed the property as "one."
    Rogers v. Rogers, 
    257 Va. 323
    , 326, 
    512 S.E.2d 821
    , 822 (1999)
    (quoting Jones v. Conwell, 
    227 Va. 176
    , 181, 
    314 S.E.2d 61
    , 64
    (1984)) (internal quotation marks omitted).   This, of course, is
    the essential and centuries old feature of a tenancy by the
    entirety.   See 7 Richard R. Powell, Powell on Real Property §§
    52.01[2] & 52.02[1] (Michael Allen Wolf ed., 2014).   The
    transfer of the property by Donald and Nancy to the appellees
    was therefore a unitary conveyance, and not accomplished through
    individual conveyances, as neither of them was capable of
    conveying any part of the property by acting alone.   Hausman v.
    233 Va. 1
    , 3, 
    353 S.E.2d 710
    , 711 (1987); Vasilion v.
    192 Va. 735
    , 740, 
    66 S.E.2d 599
    , 602 (1951).
    Furthermore, absent evidence to the contrary, the purchase
    proceeds Donald and Nancy received from their sale of the
    property, "which [they] had owned as tenants by the entireties,
    were likewise owned and held by them as tenants by the
    entireties."   Oliver v. Givens, 
    204 Va. 123
    , 127, 
    129 S.E.2d 26
    661, 663 (1963); see Pitts v. United States, 
    242 Va. 254
    , 260-62
    408 S.E.2d 901
    , 904-06 (1991) (applying Oliver).
         This Court has repeatedly stated that "[i]f rescission is
    granted, the contract is terminated for all purposes, and the
    parties are restored to the status quo ante."   McLeskey v. Ocean
    Park Investors, Ltd., 
    242 Va. 51
    , 54, 
    405 S.E.2d 846
    , 847
    (1991); see also Schmidt v. Household Fin. Corp., 
    276 Va. 108
    661 S.E.2d 834
    , 837-38 (2008).   Thus, in rescinding the
    contract in this case, the circuit court correctly ordered the
    return of ownership of the property to Donald and Nancy as
    tenants by the entirety.   Because they acquired and sold the
    property in this unitary capacity, Donald's fraud did not enable
    the court to transform their tenancy into something different,
    much less exclude Nancy altogether from the reconveyance.
    Rather, the taint of Donald's fraud upon their tenancy rendered
    both Donald and Nancy liable for repayment of the purchase price
    in exchange for both regaining ownership of the property as
    originally possessed.
         In an effort to avoid this result, the majority advances a
    non sequitur.   The majority asserts that because the contract
    merged into the deed from Donald and Nancy to the appellees,
    thereby "extinguishing" the contract (citing Beck v. Smith, 
    260 Va. 452
    , 455, 
    538 S.E.2d 312
    , 314 (2000)), the subsequent
    rescission of the contract somehow obviated the requirement of
    restoring the parties to the status quo ante.   But just the
    opposite is true.   By definition, rescission of the parties'
    previously "extinguished" contract necessarily placed them in
    the position they occupied before the execution and delivery of
    the deed - as the "unmaking" of the contract, of course, also
    nullified the deed to the appellees.   Black's Law Dictionary
    1149 (10th ed. 2014) (defining rescission).   Consequently, the
    circuit court did not have the discretion, as the majority
    asserts, to order the reconveyance of the property other than to
    Donald and Nancy as tenants by the entirety in conjunction with
    the satisfaction of their joint obligation to repay the purchase
    price to the appellees.
         For these reasons, I dissent with respect to Part II.A. of
    the majority opinion, but concur with respect to the other