Norfolk Aviation, LLC v. Rafamedia, LLC

• Court: Court of Appeals of Virginia
• Decided: May 6, 2025
• Docket: 1408231
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Causey, Chaney and Callins Argued at Hampton, Virginia

NORFOLK AVIATION, LLC

v. Record No. 1408-23-1

RAFAMEDIA, LLC MEMORANDUM OPINION* BY JUDGE DOMINIQUE A. CALLINS MAY 6, 2025 PHILLIPS AVENUE HOLDINGS, LLC

v. Record No. 1413-23-1

RAFAMEDIA, LLC

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C. Lewis, Judge

Gregory A. Giordano (Willcox & Savage, P.C., on briefs), for appellant Norfolk Aviation, LLC.

Kevin E. Martingayle (Bischoff Martingayle, P.C., on briefs), for appellant Phillips Avenue Holdings, LLC.

Cary S. Greenberg (Caroline E. Costle; Timothy R. Bradley; Greenberg Costle & Bradley, PC, on briefs), for appellee.

After discovering that the airplane it purchased was different than advertised, Rafamedia,

LLC, filed an action against Phillips Avenue Holdings, LLC (“Phillips”), and Norfolk Aviation,

LLC (“Norfolk”), on theories of fraud, breach of contract, and respondeat superior. After a

bench trial, the trial court entered judgment in favor of Rafamedia. Both Norfolk and Phillips

appealed. Norfolk and Phillips each challenge the sufficiency of the evidence to sustain the trial

* This opinion is not designated for publication. See Code § 17.1-413(A). court’s judgment. For the reasons that follow, we reverse and enter final judgment in favor of

Norfolk and Phillips.

BACKGROUND

I. Rafamedia Purchases Phillips’s Piper Malibu 350 Airplane

On or around December 2020, Phillips engaged Norfolk to sell one of its airplanes—a 2018

Piper M350. Darren Klink, Norfolk’s director and sales representative, put together the marketing

brochure Norfolk used to advertise the sale of the plane. Klink developed the marketing brochure

by searching the internet for information pertaining to model 2018 Piper M350 airplanes, as “many

of them have similar features, similar avionics.” He then used the information he found on the

internet to develop the brochure, including a “spec sheet,” on which were listed specific avionic

features advertised as installed on Phillips’s airplane. Norfolk also included the information

contained in the brochure in its online sales listing. Later that month, Rafamedia responded to the

sales listing.

Richard Foreman, the managing member of Rafamedia, sought to purchase an airplane on

behalf of the company. Foreman was an experienced pilot and “pretty knowledgeable about

airplanes,” having flown airplanes for nearly 50 years and having previously purchased 4 planes.

Foreman searched specifically for a Piper Malibu 2018 model year plane with certain avionic

features, including Flight Stream 510, SurfaceWatch, and L3 Stormscope.1 Foreman also desired a

plane equipped with ADS-B In.2

1 According to Foreman’s testimony at trial, Flight Stream 510 is “a safety feature and an ease of operation for an airplane”; SurfaceWatch is a safety feature that “provides you any kind of runway incursions, any kind of involvement of traffic that’s coming in your direction on the ground . . . [and] give[s] you surveillance area around the airplane”; and an L3 Stormscope “measures the actual intensity of lightning strikes.” 2 According to the evidence presented at trial, ADS-B In is transponder software embedded into an airplane’s navigation system, which communicates “finite traffic” and weather information. -2- On or about the end of December 2020, Foreman saw and responded to Norfolk’s listing of

Phillips’s Piper M350. Foreman began negotiating with Norfolk—and specifically, with Klink—to

purchase the airplane. During their communications, Klink sent Foreman a copy of the marketing

brochure for the Piper M350, which included the model year and the plane’s purported features,

components, and avionics systems. According to the brochure, the airplane was a 2018 Piper M350

with all of the features Foreman sought: Flight Stream 510, SurfaceWatch, L3 Stormscope, and

ADS-B In. Klink also sent Foreman the airplane’s logbooks, which included an equipment list

“show[ing] every piece of equipment and avionics that are delivered with the airplane when it was

manufactured.” Unlike that in the sales brochure, the logbook equipment list did not include the

enumerated avionics at issue “because they weren’t installed” on the airplane.

Foreman and Klink arranged for a “general inspection of everything” on the airplane “via

Zoom,” a videoconferencing technology. According to Klink, he did not take any action to preclude

Foreman from physically inspecting the airplane; it was Foreman who opted to inspect the plane via

Zoom as, for Foreman, “time was of the essence.” During the Zoom inspection Klink did not

“ignite” the avionics. Foreman later testified that, even had the avionics been “ignited,” he would

not have been able to tell if the represented avionics were included on the airplane because “they’re

embedded in the background in the software” and Foreman “took the seller’s word for it.” He did

not inspect the airplane in person prior to its delivery, nor did he have it inspected by a third party.

Although at trial Foreman admitted that it was “customary in the industry” to have a physical

inspection of an airplane prior to purchase, he instead relied on Klink’s representations regarding

the plane’s avionics because he “trust[s] aircraft salespeople intrinsically.”

-3- On December 25, 2020, prior to Rafamedia’s purchase of the airplane, Foreman emailed

Klink, asking for confirmation that the airplane had the ADS-B In feature.3 Klink responded, “Yes

indeed!” At trial, Foreman explained:

The two areas of concern with me before closing the transaction, one was [ADS-B] In. And the second was the annual, which every aircraft has to go through an annual inspection. The annual inspection that had been done that had been provided to me in the logbooks, that annual inspection was not done in November of 2020 by an FAA-certified repair station. Very important. So I went back to the seller and I said, You’ve given me a paper annual . . . . And I said, I can’t accept this. So I said--we made a monetary adjustment to the sales price, and we went forward. But this airplane annual was worthless.

But when asked on cross-examination whether he had reviewed the equipment list provided in the

logbooks, Foreman answered, “[n]ot really.” He acknowledged receipt of “two different equipment

lists” and that he only reviewed the equipment list included in the sales brochure. Foreman testified

that the representations in the sales brochure and technical specifications included in Norfolk’s sales

listing are what induced him to buy the airplane.

On December 31, 2020, Phillips and Rafamedia signed an Aircraft Purchase Agreement

(“APA”), and Rafamedia paid $940,000 to Phillips for the airplane. Among other things, the APA

provided that Rafamedia “reviewed the logbooks and virtually inspected the aircraft to their

satisfaction” and that Rafamedia purchased the aircraft “as is” and “where is.” The parties

collectively agreed to “hold harmless Broker, of all liabilities’ [sic], claims, or demands resulting in

any extent to the sale of the [a]ircraft.” The parties likewise included a merger clause, which

provided that the APA “constitutes the entire agreement between the parties” and that “[n]o

3 It is not clear from the record whether this email exchange occurred before or after the Zoom inspection. The record indicates only that this particular email exchange of December 25, 2020, between Foreman and Klink, occurred “prior to closing.” -4- statements, promises, or inducements . . . which are not contained in this written contract, shall be

valid or binding.”

The airplane was delivered to Rafamedia in January 2021. Soon thereafter, Foreman

discovered that the airplane did not have the avionics that Norfolk represented in its sales materials

and also that the airplane was manufactured in 2017, not 2018. Foreman immediately contacted

Klink about these discrepancies, but the parties were unable to reach a resolution.

II. Rafamedia Sues Norfolk and Phillips

Rafamedia brought suit against Norfolk and Phillips, seeking compensatory damages of

$166,095, punitive damages of $50,000, and attorney fees.4 Rafamedia asserted four claims: fraud

in the inducement; constructive fraud in the inducement; vicarious liability, under a theory of

respondeat superior, as to Phillips only; and breach of contract, as to Phillips only.

The case was tried before a judge, and the parties presented evidence from various experts

and lay witnesses. At the conclusion of Rafamedia’s case-in-chief, Norfolk moved to strike the

fraud claims against it, citing Hoover Universal, Inc. v. Brockway Imco, Inc., 809 F.2d 1039

(4th Cir. 1987), as “on all fours with this [case].” Norfolk argued that “as an operation of law

and an operation of contract” Rafamedia had a duty to inspect, that Rafamedia could not have a

“good reliance” on Norfolk’s representations, and that “because they didn’t inspect [the

airplane], because they would have discovered this, they don’t have fraud.” The trial court

denied Norfolk’s motion to strike.

Immediately thereafter, Phillips also moved to strike, but only as to Rafamedia’s breach

of contract claim. Phillips argued that Rafamedia’s evidence demonstrated that the airplane

4 Rafamedia initially filed its claims in the General District Court for the City of Virginia Beach, seeking $25,000, interest, and attorney fees. Rafamedia later amended its damages request above the general district court’s jurisdictional threshold, and the district court transferred the case to the circuit court. Rafamedia filed an amended bill of particulars upon transfer of the case to the circuit court. -5- manufacturer, Piper, gave the airplane its 2018 model designation and, thus, failed to establish

that Phillips breached its contract with Rafamedia. Additionally, Phillips argued that the

evidence did not support Rafamedia’s prayer for damages sought. The trial court also denied

Phillips’s motion to strike.

Phillips declined to put on evidence, but Norfolk did not, and introduced evidence,

including witness testimony. At the conclusion of its case-in-chief, Norfolk renewed its motion

to strike.5 The trial court inquired of Rafamedia, “you got any rebuttal?” After a short recess,

Rafamedia admitted a single additional exhibit to which neither Norfolk nor Phillips objected.6

Norfolk and Phillips did not thereafter renew their respective motions to strike. Instead, the trial

court ushered the parties directly into closing arguments.

In closing Norfolk again argued that, pursuant to Hoover and the Virginia Supreme Court

case, Harris v. Dunham, 203 Va. 760 (1962), Rafamedia could not claim reasonable and

justifiable reliance when it made “a partial inquiry with full opportunity of complete

investigation, and elects to act upon the knowledge obtained from the full inquiry.”7 Norfolk

also argued that Rafamedia had a “contractual duty” to inspect the plane due to the merger clause

in the APA.

In its closing argument, Phillips, too, contended that Rafamedia could not “claim that its

reliance was reasonable and justified when it made a partial inquiry with full opportunity of a full

5 Phillips rested without renewing its motion to strike. 6 Rafamedia’s rebuttal evidence, marked as “Plaintiff’s Exhibit 6,” was identified by Rafamedia as, simply, “the FAA Registry.” Of note, the exhibit identifies the year of manufacture of the subject airplane as “2017.” 7 See Dunham, 203 Va. at 769 (“[Dunham] either undertook and made a full and independent investigation . . . or made a partial inquiry, with full opportunity of complete investigation . . . , and then elected . . . to act upon the knowledge obtained from his partial inquiry.” (first alteration in original) (quoting DeJarnette v. Thomas M. Brooks Lumber Co., 199 Va. 18, 30 (1957))). -6- investigation.” In short, according to Phillips, “there’s a big issue here with the reliance.”

Phillips’s counsel further argued, regarding the breach of contract claim, that “the contract says

what it says.”

Immediately following closing arguments, the trial court rendered judgment. The

entirety of the court’s judgment is as stated below:

All right. Unusual case. Certainly not the kind of thing we see wander through here every day. And I very much appreciate the presentation from both sides.

It is my judgment that a verdict be had by the plaintiff against both defendants jointly and severally in the amount of $85,000. I will not award punitive damages in this case.

The trial court made no findings of fact, nor did it indicate under which theory of liability—fraud

or contract—it based its judgment.

Post trial, the court held a hearing to address the issue of attorney fees and to enter a final

order. Specifically, the parties argued about the liability basis for the judgment. Notably, the trial

court maintained that, regarding its judgment, “all I said was judgment for the plaintiff in the

amount of $85,000. I didn’t say fraud, no fraud, intentional, unintentional. I just said ‘judgment.’”

The trial court went on to explain, “these orders don’t need to be speaking orders. What you need is

a judgment for [Rafamedia] in the amount of $85,000.” Although Phillips’s counsel expressed

some concern with “not tethering the judgment to any particular counts or anything,” ultimately all

three parties agreed with the trial court’s offer to enter a final order “with . . . less detail.”

Thereafter, the trial court entered a final order, including an award to Rafamedia of $15,000 in

attorney fees, $992.91 in costs, and pre- and post-judgment interest at the judgment rate from

December 31, 2020. Norfolk and Phillips appeal.8

8 Norfolk’s and Phillips’s respective third assignments of error challenge the generality of the final judgment, contending that the trial court erred by “failing to differentiate between fraud and contract.” Although Phillips raised this concern in the post-trial hearing, both Norfolk and -7- ANALYSIS

I. Standard of Review

On appeal from a bench trial, we review a trial court’s judgment for clear error, setting it

aside only if it is plainly wrong or unsupported by the evidence. See MCR Fed., LLC v. JB&A,

Inc., 294 Va. 446, 457 (2017); see also CSE, Inc. v. Kibby Welding, LLC, 77 Va. App. 795, 802

(2023). In so doing, “[w]e consider the evidence and all reasonable inferences fairly deducible

from it in the light most favorable to the prevailing party below.” MCR Fed., 294 Va. at 457

(alteration in original) (quoting Gov’t Emps. Ins. Co. v. United Servs. Auto. Ass’n, 281 Va. 647,

655 (2011)). Indeed, “[w]e ‘give the findings of fact made by a trial court that heard the

evidence and evaluated the credibility of the witnesses at a bench trial the same weight as a jury

verdict.’” Kibby Welding, 77 Va. App. at 802 (quoting Mintbrook Devs., LLC v. Groundscapes,

LLC, 76 Va. App. 279, 287 (2022)). However, we review de novo a trial court’s application of

the law to those facts. Caplan v. Bogard, 264 Va. 219, 225 (2002); Koons v. Crane, 72 Va. App.

720, 732 (2021). It is through the prism of these standards that we now review the trial court’s

judgment.

II. The Extent and Validity of the Judgment Order

Before we can address the merits of these appeals, we must first consider whether this

Court has jurisdiction to hear them. Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73

(1998) (“[I]t is essential to the validity of a judgment or decree, that the court rendering it shall

Phillips agreed to the trial court entering the general final judgment, and neither objected to the order based on its failure to differentiate between the fraud and contract claims. Therefore, we hold that the record “affirmatively show[s]” that Norfolk and Phillips abandoned this argument. See Bajgain v. Bajgain¸ 64 Va. App. 439, 451 (2015) (“[I]n order for a waiver to occur within the meaning of Code § 8.01-384(A), the record must affirmatively show that the party who has asserted an objection has abandoned the objection or has demonstrated by his conduct the intent to abandon that objection.” (quoting Kellermann v. McDonough, 278 Va. 478, 491 (2009))); see also Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling.”). -8- have jurisdiction of both the subject matter and parties.” (quoting Barnes v. Am. Fertilizer Co.,

144 Va. 692, 706 (1925))). A reviewing court “always has jurisdiction to determine whether it

has subject matter jurisdiction,” and “the lack of subject matter jurisdiction can be raised at any

time in the proceedings, even for the first time on appeal by the court sua sponte.” Watson v.

Commonwealth, 297 Va. 347, 352 (2019) (quoting Morrison v. Bestler, 239 Va. 166, 170

(1990)); see also Chaplain v. Chaplain, 54 Va. App. 762, 767 (2009) (“The issue of subject

matter jurisdiction may be raised sua sponte by the Court.”). Put differently, “subject-matter

jurisdiction is the paramount consideration in assessing whether a court has authority to enter

judgment, and a judgment will always be void without it.” Watson, 297 Va. at 352.

Central to the inquiry into our own subject matter jurisdiction here is the validity of the

trial court’s final order. This is because “[w]e adhere to the principle that a court may not base a

judgment or decree upon facts not alleged or upon a right, however meritorious, that has not been

pleaded and claimed.” Syed v. Zh Techs., Inc., 280 Va. 58, 71 (2010) (alteration in original)

(quoting Hensley v. Dreyer, 247 Va. 25, 30 (1994)). “A decree cannot be entered in the absence

of pleadings upon which to found the same, and if so entered it is void.” Willems v. Batcheller,

78 Va. App. 199, 214 (2023) (quoting Ted Lansing Supply Co. v. Royal Aluminum & Constr.

Corp., 221 Va. 1139, 1141 (1981)). Or, as a panel of this Court has stated more plainly, if “the

circuit court grant[s] relief not sought, the circuit court lack[s] jurisdiction to grant said relief,

and the relief is void.” Id. at 215.

Rafamedia’s amended bill of particulars brought six total claims against two

co-defendants, the appellants: two fraud claims, each implicating both Norfolk and Phillips; one

breach of contract claim implicating only Phillips; and one vicarious liability claim implicating

only Phillips. Rafamedia did not bring claims against Norfolk for either breach of contract or

-9- vicarious liability.9 Nonetheless, the trial court held Norfolk and Phillips jointly and severally

liable but declined to find judgment under a specific theory of liability. Recognizing that there is

no general requirement that a trial court state its reasons for its judgment, Shannon v.

Commonwealth, 289 Va. 203, 206 (2015), and that this Court may uphold a judgment for any

reason supported by the record, Haynes v. Haggerty, 291 Va. 301, 305 (2016), we must still

discern whether the trial court entered a valid judgment against Norfolk and Phillips, jointly and

severally, pursuant to Rafamedia’s pleading and prayer for relief. No court, including this one,

can base its judgment “upon facts not alleged, nor render its judgment upon a right, however

meritorious, which has not been pleaded and claimed.” Ted Lansing Supply, 221 Va. at 1141

(quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207 (1935)).

Yet, in circumstances where a trial court provides little or no reasoning for its judgment,

we “need not determine the precise reason” but “may rely upon any reasonable basis in the

record that supports the trial court’s decision” to affirm the trial court decision. Minh Duy Du v.

Commonwealth, 292 Va. 555, 566 (2016). Further, we recognize that “[t]he trial court’s rulings

come to us with a presumption of correctness.” Rainey v. Rainey, 74 Va. App. 359, 377 (2022).

Indeed, “[t]he trial court is presumed to know and correctly apply the law ‘absent clear evidence

to the contrary in the record.’” Id. (quoting Milam v. Milam, 65 Va. App. 439, 467 (2015)). In

accordance with this presumption, we consider the posture of the final order before us.

The plain language of the final order is susceptible of several interpretations. Only one

such interpretation, however, renders the trial court’s final order valid and not void—that the

judgment against Norfolk and Phillips pertains only to Rafamedia’s fraud claims. See Dobie v.

Sears, Roebuck & Co., 164 Va. 464, 476 (1935) (“The test of the relief to be granted is not the

9 Moreover, at oral argument on this appeal, Rafamedia conceded that it did not bring, nor could the trial court have sustained, a breach of contract claim against Norfolk. - 10 - case proved, but the case stated in the bill upon which the issue is made up.”). As we presume

that the trial court knew and correctly applied the law, we conclude that the trial court entered a

valid final judgment finding Norfolk and Phillips jointly and severally liable on the fraud claims

only.10 Therefore, we have jurisdiction to hear these appeals and, accordingly, we address the

appellants’ arguments concerning Rafamedia’s fraud claims.11

III. Fraud in the Inducement

Rafamedia asserted a claim of fraud in the inducement against Norfolk and Phillips,

alleging that both parties “knowingly and intentionally” provided false information about the

avionics and model year of the airplane and that they did so to induce Rafamedia to purchase the

airplane. Norfolk and Phillips each contend that the trial court erred by failing to grant their

respective motions to strike, and further, erred in granting judgment against them, because the

evidence was insufficient to establish fraud as a matter of law, as Rafamedia could not have

10 Our dissenting colleague spends much time challenging our recognition that the final judgment must have held both Norfolk and Phillips jointly and severally liable on Rafamedia’s fraud claims in order that the final order be valid. Additionally, our dissenting colleague contends that “the majority chooses to analyze” only one of the claims and that we incorrectly rely on the amended bill of particulars. The parties, however, do not dispute these points. Indeed, Rafamedia itself admits this conclusion:

The full context of the record indicates a joint and several fraud judgment against Norfolk Aviation and Phillips. As Norfolk Aviation acknowledges, Rafamedia sued Norfolk for fraud and did not sue Norfolk Aviation for breach of contract. In that context, we must presume that the trial court’s joint and several verdict against Norfolk Aviation and Phillips was for fraud.

(Emphasis added). Because the fraud claims were the only claims Rafamedia asserted against both Norfolk and Phillips—and because a court cannot base its judgment against a party on a claim not pleaded against that party—our conclusion is both necessary and clear. Syed, 280 Va. at 71 (“[A] court may not base a judgment or decree upon facts not alleged or upon a right, however meritorious, that has not been pleaded and claimed.” (quoting Hensley, 247 Va. at 30)). 11 Because we find that the final order held Norfolk and Phillips jointly and severally liable on solely the fraud claims, we do not address Norfolk and Phillips’s assignments of error to the extent they implicate the breach of contract claim. - 11 - justifiably relied on the representations made to it by Phillips through its agent, Norfolk.

Rafamedia responds that it sufficiently and substantially proved its claims of fraud against both

appellants, including by proving that Norfolk and Phillips admitted to making false statements of

material fact upon which Rafamedia reasonably relied. We agree with Norfolk and Phillips.

A. Norfolk’s Motion to Strike12

Norfolk first contends that the trial court erred in denying its motion to strike because

Rafamedia failed as a matter of law to prove the elements of fraud since it could not have

justifiably relied on the representations made to it by Phillips through Norfolk. We agree.

“[A] motion to strike at the conclusion of the plaintiff’s case-in-chief . . . tests whether

his evidence is sufficient to prove it.” Boyette v. Sprouse, 79 Va. App. 558, 573 (2024)

12 We conclude that Norfolk preserved this argument for appeal. Within the context of a motion to strike,

an appellate court will not review a challenge to the sufficiency of the evidence when a defendant who has chosen to introduce evidence in his or her defense, after the trial court has overruled his or her motion to strike made at the conclusion of the plaintiff’s case, does not make either a motion to strike at the conclusion of all the evidence or a motion to set aside the verdict.

United Leasing Corp. v. Lehner Fam. Bus. Tr., 279 Va. 510, 517 (2010). In other words, a party must “inform the circuit court of the grounds upon which he or she relies in making a new motion to strike so that the circuit court has the opportunity to consider the asserted grounds . . . in light of all the evidence presented, including defense and rebuttal evidence.” Id. at 518. Even so, “an appropriate argument made during closing, or ‘summation,’ will preserve a challenge to the sufficiency of the evidence in a bench trial.” Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011). Simply stated, if, in a bench trial, a defendant “reassert[s] the issues raised in his original motion to strike in his closing argument,” the defendant has preserved those issues on appeal. McDowell v. Commonwealth, 282 Va. 341, 342 (2011). In so doing, “the sufficiency challenge must be clear enough for the trial court to discern its presence and to be able to distinguish it from an argument on the merits.” Dickerson, 58 Va. App. at 358. In its initial motion to strike, Norfolk contended, in relevant part, that Hoover is “on all fours” with this case, as the Hoover plaintiff failed to prove good faith reliance when it completed only a partial inspection of the property it intended to purchase from the defendant company. Norfolk further argued, “And [the Supreme Court] said under those circumstances, they had a duty to inspect. They didn’t have a good reliance on their representation. And because they didn’t inspect it, because they would have discovered this, they don’t have fraud.” - 12 - (alterations in original) (quoting Tahboub v. Thiagarajah, 298 Va. 366, 371 (2020)). As granting

a motion to strike “is drastic and should not be done unless it is very plain that the court would

be compelled to set aside a verdict for [the non-moving party],” a trial court should not sustain

the motion “in any doubtful case.” Id. (alteration in original) (first quoting Tahboub, 298 Va. at

371; and then quoting Walton v. Walton, 168 Va. 418, 422 (1937)). “An appellate court

‘review[s] a circuit court’s decision on a motion to strike in the light most favorable to the

non-moving party, and the non-moving party “must be given the benefit of all substantial

conflict in the evidence, and all fair inferences that may be drawn therefrom.”’” Butler v.

Stegmaier, 77 Va. App. 115, 124 (2023) (alteration in original) (quoting Dill v. Kroger Ltd.

P’ship I, 300 Va. 99, 109 (2021)).

In Virginia, “[f]raud, whether actual or constructive, is never presumed and must be

strictly proved as alleged.” Sweely Holdings, LLC v. SunTrust Bank, 296 Va. 367, 381 (2018)

(alteration in original) (quoting Henderson v. Henderson, 255 Va. 122, 126 (1998)). “The

burden of proof applicable to fraud, clear and convincing evidence, is higher than a mere

preponderance.” Id. at 381-82. Fraud in the inducement occurs in the context of contractual

arrangements when one party enters into a binding agreement with another based on the other’s

Prior to closing arguments, Norfolk renewed its motion to strike. The trial court did not rule on the motion, but instead invited the parties to introduce additional evidence. See Code § 8.01-384(A) (“No party, after having made an objection or motion known to the court, shall be required to . . . make such objection or motion again in order to preserve his right to appeal.”). Rafamedia introduced a single exhibit on rebuttal. The trial court then ushered the parties into closing arguments. In Norfolk’s closing argument, it “reassert[ed] the issues raised in [its] original motion,” McDowell, 282 Va. at 342, contending that, “A plaintiff cannot claim that its reliance is reasonable and justified when it makes a partial inquiry with full opportunity of complete investigation, and elects to act upon knowledge obtained from the partial inquiry. And that’s what we have here.” Rafamedia again referenced Hoover as being “on all fours,” and cited to Harris v. Dunham. Because Norfolk’s sufficiency challenge was clear and substantially similar at the strike and closing stages, we find the issue preserved on appeal. Phillips, however, did not move to strike Rafamedia’s fraud claim. Therefore, we address only Norfolk’s motion to strike. - 13 - false representation of a material fact on which the misled party relies in entering into the

agreement. See Ware v. Scott, 220 Va. 317, 319 (1979) (recognizing that fraud in the

inducement generally requires that “the misrepresentation or concealment must have been

intended to induce and must, in fact, have induced the formation of the contract”). A claim of

actual fraud in the inducement requires that a party prove the existence of “(1) [a] ‘false

representation,’ (2) ‘of a material fact,’ (3) which induces the contract, (4) ‘on which the [other

party] had a right to rely,’ and (5) results in damages.” Nestler v. Scarabelli, 77 Va. App. 440,

463 (2023) (second alteration in original) (citations omitted) (quoting Abi-Najm v. Concord

Condo., LLC, 280 Va. 350, 362 (2010)). “Constructive fraud differs from actual fraud in that the

misrepresentation of material fact is not made with the intent to mislead, but is made innocently

or negligently although resulting in damage to the one relying on it.” Evaluation Rsch. Corp. v.

Alequin, 247 Va. 143, 148 (1994).

“[T]o establish fraud, it is essential that the defrauded party demonstrates the right to

reasonably rely upon the misrepresentation.” Metrocall of Del., Inc. v. Cont’l Cellular Corp.,

246 Va. 365, 374 (1993) (recognizing that “some courts label this requirement ‘justifiable

reliance’” (quoting Pettinelli v. Danzig, 722 F.2d 706, 709 (11th Cir. 1984))).13 “Absent such

reasonable or ‘justifiable reliance,’ no fraud is established.” Sweely Holdings, 296 Va. at 382

(quoting Murayama 1997 Tr. v. NISC Holdings, LLC, 284 Va. 234, 246 (2012)). “The legal

boundaries of justifiable reliance depend upon the facts of each case.” Id. at 383. Our Supreme

Court has long held that “one who seeks to hold another in fraud must clearly show that he has

relied upon the acts and statements of the other.” Dunham, 203 Va. at 767. However, a claimant

13 Although our dissenting colleague opts to use the term “reasonable reliance,” our precedent treats the terms “justifiable reliance” and “reasonable reliance” as synonyms and employs them interchangeably. - 14 - “must be held not to have so relied when it appears that he has made his own investigation,

whether complete or not, into the subject matter at hand.” Id.

Thus, as a matter of law, “[r]eliance may not be justified . . . when a potential buyer

undertakes an investigation regarding the matter at issue.” Beck v. Smith, 260 Va. 452, 457

(2000). This is because, “[u]pon undertaking such an investigation, the buyer is charged with the

knowledge the investigation reveals, or, if the investigation was incomplete, the knowledge that

would have been revealed had the investigation been pursued diligently to the end.” Id.

(collecting cases).

Foreman testified that, although he received two different equipment lists, he only

reviewed one—the equipment list “in the brochure.” And he admitted that he did “[n]ot really”

review that one list. Foreman also acknowledged that “in most cases” it is customary to perform

a “physical inspection.” Although the evidence at trial demonstrated that a “prebuy inspection”

would include verification “that avionics are included that are listed in the logbooks,” Foreman

participated instead in a “virtual inspection.” Klink testified that he did not prevent Foreman

from physically inspecting the airplane, and Foreman likewise acknowledged that he was not

precluded from conducting a physical inspection prior to purchasing the airplane.

Indeed, here, “nothing was done to throw the purchaser off his guard, or to divert him

from inquiry and examination.” Watson v. Avon St. Bus. Ctr., Inc., 226 Va. 614, 619 (1984).

Thus, we disagree with Rafamedia that this case is analogous to Armentrout v. French, 220 Va.

458 (1979). In Armentrout, the sellers of a home “attempted successfully to mask [a] foul smell

by using fires and cooking odors” during visits, and the purchasers entered into a contract to

purchase the home. 220 Va. at 466. Our Supreme Court reiterated that “the seller ‘must not say

or do anything to throw the purchaser off his guard or to divert him from making the inquiries

and examination which a prudent man ought to make.’” Id. (quoting Horner v. Ahern, 207 Va.

- 15 - 860, 864 (1967)). The Court held that although purchasers have a duty to make inspections of

that “which would excite the suspicions of a reasonably prudent person,” the case fell under an

exception because the sellers masked any potential inquiries and examinations the purchasers

may have had about the odor. Id.

Unlike in Armentrout, Foreman not only had the opportunity to physically inspect the

airplane, but also to inspect the logbooks, which evidence at trial established would have put

Foreman, had he reviewed them thoroughly, on notice that the airplane did not contain the

desired avionics. The logbooks contained the equipment list, including “every piece of

equipment and avionics that [were] delivered with the airplane when it was manufactured,” and

the equipment list did not show “any of the avionics [Foreman complained] he didn’t get”

because “they weren’t installed.” Foreman testified that he received and conducted some

inspection of the logbooks, and further, that he acted on at least one discrepancy he found in the

logbook. Because the airplane’s “annual inspection was not done in November of 2020 by an

FAA-certified repair station,” Foreman renegotiated the purchase price for the airplane based on

that discovery. In other words, Foreman conducted at least a partial investigation.

Foreman was a sophisticated buyer, and was thus, “by virtue of the fact that he

investigated partially, bound by all that a complete investigation would have disclosed.”

Dunham, 203 Va. at 768. Indeed, if a purchaser like Foreman “is directed to the sources of

information and undertakes an examination of the facts for himself, he is charged with all the

knowledge which he might have obtained had he pursued the inquiry diligently to the end.”

Watson, 226 Va. at 619.14 “He cannot, in such circumstances, complain that he was misled by

14 In dismissing our characterization of Foreman as a “sophisticated buyer” as “not elevat[ing] or diminish[ing] the legal standard applicable to the seller’s duty to provide truthful representation,” our dissenting colleague misses the point. The element of justifiable reliance does not call into question the seller’s duty; it assumes a misrepresentation was made. Rather, the element concerns a buyer’s obligation, if any, to respond diligently to notice potential - 16 - the seller’s representation, however false it might have been, because he was no longer justified

in relying upon it.” Id.

At the time of the trial, Foreman had been a pilot for nearly 50 years and purchased 4

airplanes prior to his negotiations with Norfolk and Phillips. He was familiar with the process of

purchasing airplanes. He knew precisely the type of airplane he wished to purchase and what

features he desired to be included. Yet, although he conducted a partial inspection, he failed to

pursue a complete one. Moreover, prior to closing he identified at least one discrepancy between

the advertising materials and the actual state of the airplane and thus was on notice of the

potential of additional discrepancies. See Metrocall, 246 Va. at 375 (“[W]hen negotiating or

attempting to compromise an existing controversy . . . it is unreasonable to rely on the

representations of the allegedly dishonest party.”). Thus, Foreman was no longer justified in

relying upon any of Norfolk’s or Phillips’s representations.

Hoover Universal—the federal case relied upon by Norfolk in its motion to strike and

closing argument—includes facts analogous to the facts presented here. In Hoover, Imco

decided to sell a process for manufacturing plastic bottles and prepared a handout for prospective

buyers, including Hoover, that overstated “the number of bottles that could be produced on a

machine per cycle.” 809 F.2d at 1041. Imco also sent a “trip report” to Hoover which included

the handout with the incorrect information. Id. Then, Hoover visited the facility and was shown

“machine drawings” relating to the process it sought to purchase. Id. Although Hoover had the

opportunity to conduct a close inspection of the machines and the drawings, which would have

misrepresentation. As our Supreme Court emphasized in Harris v. Dunham, a buyer’s sophistication and experience with the contract subject renders unreasonable such buyer’s reliance on misrepresentation where he engages in “his own investigation, whether complete or not, into the subject matter at hand.” 203 Va. at 767 (holding an “experienced businessman” barred from recovery based in fraud where he engaged in a partial investigation into representations of the financial condition of the company he sought to purchase). - 17 - disclosed the error, Hoover “voluntarily limited [its] inspection” to a determination of the

currentness of the drawings. Id. Hoover then brought a fraudulent inducement claim against

Imco, contending that it detrimentally relied on the misrepresentation in Imco’s handout. Id. at

1041-45.

Applying Virginia law, the Fourth Circuit Court of Appeals held that the district court

properly granted summary judgment to Imco. “[I]n circumstances where a prudent buyer would

have conducted an investigation and, thereby, discovered the seller’s misstatement, a buyer who

fails to make such an investigation may not assert fraud based on the factual misrepresentation.”

Id. at 1044. As in Hoover, here Foreman voluntarily limited his inspection, choosing not to

conduct a physical inspection, not to investigate the equipment list from the logbook, and not to

question the discrepancies between the equipment list from the logbook and that included in the

sales brochure. Notably, Foreman, in reviewing the same logbook wherein he disregarded the

discrepant equipment list, identified the “annual inspection” as insufficient, brought it to Norfolk

and Phillips’s attention, and renegotiated the price of the airplane on that basis. Moreover, even

as the facts of Hoover are analogous to those presented here, we must emphasize that the

principles for which Hoover stands are well settled in Virginia law. See Beck, 260 Va. at 457

(“Reliance may not be justified, however, when a potential buyer undertakes an investigation

regarding the matter at issue. Upon undertaking such an investigation, the buyer is charged with

the knowledge the investigation reveals, or, if the investigation was incomplete, the knowledge

that would have been revealed had the investigation been pursued diligently to the end.”);

Watson, 226 Va. at 619 (“[I]f a buyer, having received a positive representation of material fact,

is directed to the sources of information and undertakes an examination of the facts for himself,

he is charged with all the knowledge which he might have obtained had he pursued the inquiry

diligently to the end.”). Based on these principles, and accepting, as we must, Rafamedia’s

- 18 - evidence that Foreman relied on Norfolk’s false representations, we conclude that Rafamedia’s

reliance was not justified. Thus, Rafamedia’s claims of fraud against Norfolk necessarily fail as

a matter of law, and we hold that the trial court erred in denying Norfolk’s motion to strike.

B. Phillips’s Challenge to the Sufficiency of the Evidence15

Phillips also challenges the sufficiency of the evidence to sustain Rafamedia’s fraud

claim, arguing, for the same reasons as Norfolk, that Rafamedia’s reliance was not justifiable

when it made a partial inquiry and had the opportunity to complete a full investigation. For

many of the reasons stated supra, we agree with Phillips.

“[T]he standard of review for determining the sufficiency of evidence on appeal is well

established.” Sidya v. World Telecom Exch. Commc’ns, LLC, 301 Va. 31, 37 (2022) (quoting

Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 90 (2012)). “The reviewing court must examine the

evidence in the light most favorable to . . . the prevailing party at trial, and the trial court’s

judgment will not be disturbed unless it is plainly wrong or without evidence to support it.” Id.

(alteration in original) (quoting Nolte, 284 Va. at 90).

Acknowledging this standard, we nevertheless hold that the evidence presented at the

bench trial was insufficient to demonstrate that Rafamedia justifiably relied on the

representations made by Phillips through Norfolk. As previously discussed, Foreman was a

sophisticated buyer who had the opportunity to conduct a full inspection of the airplane prior to

purchase, but elected not to. The evidence established that Foreman had the opportunity to

compare the equipment list from the logbooks with that provided in the sales brochure, but did

not. But based on information provided in the same logbooks, Foreman did make further

15 In its second assignment of error, Phillips asserts, among other things, that the trial court “erred in awarding a judgment in favor of plaintiff when the plaintiff failed to prove the elements of fraud.” Phillips made this argument in closing and noted its objection on this basis on the final order. See Code § 8.01-384(A). For these reasons, we find Phillips properly preserved this assignment of error. - 19 - inquiry, even to the point of renegotiating the sales price. Foreman conducted a “virtual”

inspection of the airplane but elected to forego a “customary” physical inspection. Further, the

evidence did not establish that Phillips and Norfolk acted in a way to “throw [Foreman] off his

guard,” Watson, 226 Va. at 619, but that Rafamedia possessed the information, access, and

opportunity to discover all that a full investigation would have revealed. That it elected to

engage in part, but not in full, in such investigation renders its reliance on Norfolk’s and

Phillips’s misrepresentation not justifiable. We hold that the trial court erred in finding the

evidence sufficient to sustain Rafamedia’s claim of fraud against Phillips.16

CONCLUSION

For the foregoing reasons, we hold that the trial court erred in finding the evidence

sufficient to sustain Rafamedia’s claims of fraud against Norfolk and Phillips. We reverse the

judgment of the trial court and enter final judgment in favor of both Norfolk and Phillips.

Reversed and final judgment.

16 Norfolk and Phillips both assign error to the trial court’s awarding of damages, attorney fees, and in imposing joint and several liability. Because we reverse, holding Norfolk and Phillips are not liable to Rafamedia, we need not address these assignments of error. See Shifflett v. Hill, 82 Va. App. 367, 379 n.12 (2024) (“[J]udicial restraint dictates that we decide cases on the best and narrowest grounds available.” (quoting Commonwealth v. White, 293 Va. 411, 419 (2017))). The application of judicial restraint here redounds to Norfolk and Phillips’s benefit, as, in any event, it appears that these arguments were not preserved for appeal. See Rule 5A:18. - 20 - Causey, J., dissenting.

This Court must view the evidence in the light most favorable to Rafamedia, the

prevailing party below. We ask only whether the verdict was plainly wrong or without evidence

to support it. It is not our role to substitute our judgment for that of the trial court. Therefore, I

respectfully dissent.

THE GENERAL VERDICT

This Court is required to review the record for any reasonable basis that could have

supported the judgment against the appellants in this case. The majority states that the only

claim brought against both parties was fraud and that therefore, the joint and several judgment

against both parties must be based on fraud. This analysis neglects Rafamedia’s warrant in debt.

In its warrant in debt, Rafamedia asserted fraud, breach of contract, and respondeat superior

claims against both Norfolk Aviation and Phillips Avenue, without distinguishing between its

claims against one or the other, or stating that Rafamedia only wanted a joint judgment against

the parties if they were found liable on the same claim. The warrant in debt simply stated,

“Fraudulent misrepresentation and/or breach of contract, breach of warranty” and listed both

parties as defendants.

It is not for us to say whether the trial court’s judgment—for which it used a general

verdict—was based on one theory or the other, or a combination of theories against the parties

(for instance, a breach of contract claim against one party and a fraud claim against the other). In

attempting to ascertain the precise reason for the trial court’s verdict, the majority neglects to

consider whether the record furnishes any reasonable basis for its judgment. See Minh Duy Du v.

Commonwealth, 292 Va. 555, 566 (2016) (an appellate court “need not determine the precise

reason . . . [but] may rely upon any reasonable basis in the record that supports the trial court’s

decision”).

- 21 - The trial judge in this case used a general verdict, stating only that Rafamedia was

entitled to an $85,000 verdict against the defendants, jointly and severally. Nothing bars the trial

judge’s employment of a general verdict. W. Hamilton Bryson, Bryson on Virginia Civil

Procedure § 11.08 (5th ed. 2017). A judge is under no duty to state his or her reasons for

entering a verdict. Reviewing such a verdict, this Court will not attempt to ascertain the true

reasons for the judge’s verdict, but rather, assess whether the record furnishes any reasonable

basis for sustaining the verdict. See Minh Duy Du, 292 Va. at 566 (an appellate court “need not

determine the precise reason . . . [but] may rely upon any reasonable basis in the record that

supports the trial court’s decision”). See also Commonwealth v. Holland, ___ Va. ___, ___ (Jan.

16, 2025) (“Where, as here, the trial court does not make express findings of fact, a reviewing

court cannot make its own.”).

On April 3, the court announced its judgment and simply stated, “It is my judgment that a

verdict be had by the plaintiff against both defendants jointly and severally in the amount of

$85,000.” Neither defendant objected to the generality of the verdict. At a subsequent hearing

regarding attorney fees and the final order, both appellants consented to the trial judge’s stated

preference for a general order. Therefore, the appellants waived any objection to the generality

of this verdict.

In Virginia, a judge does not need to specifically state the factual basis for holding

defendants jointly and severally liable if the record supports the decision. Virginia law presumes

the correctness of the trial court’s rulings and does not require specific factual findings to be

articulated. This presumption of correctness applies as long as the record contains credible

evidence supporting the trial court’s decision. Caprino v. Commonwealth, 53 Va. App. 181, 184

(2008). Nothing bars a trial court from using a general verdict to announce joint and several

liability, and joint and several liability can apply to defendants who are liable to the plaintiff

- 22 - under different theories, and who violated separate rights. Cf. Cox v. Geary, 271 Va. 141, 152

(2006) (wrongfully incarcerated prisoner suffered only one “single, indivisible injury” that

undergirded both a statutorily created right of action against the Commonwealth and a separate

legal malpractice claim against his own attorney). It is entirely possible that the joint and several

judgment against Norfolk and Phillips was based on a combination of the pleaded claims—

including, but not limited to, the possibility of a fraud in the inducement claim against Norfolk

and a breach of contract claim against Phillips. In fact, the parties argue these exact theories in

their appellate briefs, which belies the majority’s conclusion.

Here, the majority concludes that the judgment against Norfolk Aviation and Philips

Avenue pertains “only” to Rafamedia’s fraud claims. How? There is no factual finding by the

trial court on which to base this conclusion. The pleadings state multiple claims pleaded against

Norfolk Aviation and Phillips Avenue. Since the trial court did not specify its reasoning, the

judgment can be based on any of the pleaded claims or a combination thereof. See Minh Duy

Du, 292 Va. at 566 (an appellate court “need not determine the precise reason . . . [but] may rely

upon any reasonable basis in the record that supports the trial court’s decision”). The majority

attempts to confine Rafamedia to the allegations in its amended bill of particulars, while ignoring

its original pleading in this case, its warrant in debt. In its initial pleading, its warrant in debt,

Rafamedia simply stated claims against Norfolk and Phillips for “Fraudulent misrepresentation

and/or breach of contract, breach of warranty.” Rafamedia’s bill of particulars did not replace its

warrant in debt but supplemented it. See Bryson, supra, § 6.02 (“Bills of particulars are

supplemental motions for judgment.” (emphasis added)). The circuit court was within its rights

to consider any of the requested grounds, from the warrant in debt, the bill of particulars, or the

grounds of defense. But the majority attempts to ascertain the true reasons for the judge’s

decision by stating that the “only” possible basis for the judge’s decision is fraud. (Emphasis

- 23 - added). This was not a finding of fact by the trial court, and this reviewing Court cannot make

its own findings of fact. See Bottoms v. Bottoms, 249 Va. 410, 414 (1995) (“A reviewing court

should never redetermine the facts on appeal.”); Yarborough v. Commonwealth, 217 Va. 971,

978 (1977) (“Absent clear evidence to the contrary in the record, the judgment of a trial court

comes to us on appeal with a presumption that the law was correctly applied to the facts.”). The

judge never stated the reasons for entering the verdict nor was the judge under any duty to do so.

Since the trial court did not specify its reasoning, the judgment can be based on any of the

pleaded claims or a combination thereof. See Minh Duy Du, 292 Va. at 566 (an appellate court

“need not determine the precise reason . . . [but] may rely upon any reasonable basis in [all of

the] record that supports the trial court’s decision.” (emphasis added)). Here, as stated above, the

record consists of more than the bill of particulars (a supplemental motion) on which the

majority so heavily relies, ignoring the initial pleading and other evidence in the record. The

trial court made no reference to the bill of particulars in its general verdict.

The “tug” to redetermine the facts on appeal, as the majority does here, can be

compelling, even when appellate review requires a court to analyze the evidence in the light most

favorable to the prevailing party and to leave a trial court’s finding undisturbed absent plain

error. Holland, ___ Va. at ___; Collins v. First Union Nat’l Bank, 272 Va. 744, 749 (2006).

“And while we may understand and even appreciate the impulse, it should not happen.”

Holland, ___ Va. at ___. In other words, this Court must rely on all of the record and cannot

make its own findings of fact.17

17 The majority casts the issue of the final judgment’s basis as undisputed between the parties, and quotes from Rafamedia’s brief. But the majority neglects to mention Norfolk Aviation’s argument that the judgment was based on breach of contract. See Norfolk Op. Br. 19 (“It is also important to note that the judgment awarded to plaintiff was not based on fraud or fraud in the inducement, but was based on the judge’s finding of a breach of contract.”). This statement—as with the majority’s quoted statement from Rafamedia—was made in the context of the parties’ dispute over the significance of discussions in a post-trial hearing, which we need - 24 - Additionally, even if a breach of contract judgment against Phillips Avenue posed any

conflict with a verdict against Norfolk Aviation, this conflict would not supply a reason for this

Court to disregard Rafamedia’s contract claim—this Court would be well within its rights to

affirm the judgment as to one party but not the other. See Gray v. Stuart & Palmer, 74 Va. (33

Gratt.) 351, 358 (1880) (treating a joint judgment against three parties as a judgment only against

two parties because it was void as to a third). In reviewing the record, this Court was required to

consider each of Rafamedia’s arguments. Among these, the Court was required to consider

Rafamedia’s argument that Phillips breached a contract with Rafamedia: that repeated

misrepresentations about the relevant aircraft’s avionics features, and misrepresentation of the

aircraft sold as a 2018-model aircraft, gave rise to a breach of warranty or contract.

REASONABLE RELIANCE

As stated in the previous section, this Court must review the record for any possible basis

to uphold the trial court’s judgment, not limit its analysis to Rafamedia’s fraud claims. But

because the majority focuses on fraud and the question of reasonable reliance, I assess whether

the record supplies sufficient evidence to support the verdict on this basis.

In this case, the evidence available to the trial judge was more than sufficient to support a

verdict for Rafamedia on this ground, which the majority chooses to analyze. The record

showed that Norfolk Aviation made repeated misrepresentations and gave direct reassurances to

Foreman about the presence of valuable avionics on the aircraft, that Foreman declined to

perform further independent investigation due to his trust in Norfolk Aviation’s statements, and

that the standard in-person inspection that he would have otherwise performed would not have

not reach due to the majority’s disposition of the case. Neither side’s statement guides our review here; rather, we have a mandate, under Minh Duy Du, to review the record for any reasonable basis to support the judgment. 292 Va. at 566. This includes Rafamedia’s argument, made below and on appeal, that their trial evidence also proved a breach of contract by Phillips. - 25 - revealed the presence of avionics. The evidence also showed that while Norfolk Aviation

advertised the aircraft as a 2018-model plane, it delivered a 2017-model plane. In these

circumstances, there was more than enough evidence to support the verdict of the trial court on

the grounds that the majority chooses to assess. Under our applicable standard of review, a

finding of reasonable reliance necessary to support Rafamedia’s fraud claims—which we

consider only because the majority limited its analysis to that issue—would not be plainly wrong

or without evidence to support it. See Sidya v. World Telecom Exch. Commc’ns, LLC, 301 Va.

31, 37 (2022).

I: Standard of Review

We review the sufficiency of the evidence on this issue according to Norfolk and

Phillips’ second assignment of error, in which they argue that the trial court erred in “awarding a

judgment in favor of plaintiff when the plaintiff failed to prove the elements of fraud, breach of

contract or any other theory it asserted at trial.”18 This Court’s review in such a case is highly

deferential: “[T]he trial court’s judgment will not be disturbed unless it is plainly wrong or

without evidence to support it.” Sidya, 301 Va. at 37 (quoting Nolte v. MT Tech. Enters., LLC,

284 Va. 80, 90 (2012)). We review the trial court’s judgment for “clear error.” MCR Fed., LLC

v. JB&A, Inc., 294 Va. 446, 457 (2017). We “view the evidence and all reasonable inferences

arising therefrom in the light most favorable to” Rafamedia, “the prevailing party at trial.” Tel.

Square v. 7205 Tel. Square, LLC, 77 Va. App. 375, 396 (2023) (quoting McKee Foods Corp. v.

18 While Phillips Avenue assigned error to the denial of its motion to strike, it failed to preserve this argument for appeal because it did not renew its motion to strike after Rafamedia put on rebuttal evidence. Therefore, the court’s denial of Phillips’ motion to strike is not subject to our review. Rule 5A:18. See Murillo-Rodriguez v. Commonwealth, 279 Va. 64, 83 (2010) (failure to renew a motion to strike after additional evidence presented constitutes waiver of prior argument because the new argument “will necessarily raise a new and distinct issue from the one presented by the denied motion to strike”). Phillips Avenue does not ask this Court to apply the “ends of justice” or “good cause” exceptions of Rule 5A:18 to request review of the denial of the unpreserved motion to strike. - 26 - Cnty. of Augusta, 297 Va. 482, 495 (2019)). See also Holland, ___ Va. at ___.19 “We also

presume — even in the absence of specific factual findings — that the trial court resolved all

factual ambiguities or inconsistencies in the evidence in favor of the prevailing party and gave

that party the benefit of all reasonably debatable inferences from the evidence.” Hill v.

Commonwealth, 297 Va. 804, 808 (2019) (citing Fitzgerald v. Commonwealth, 223 Va. 615,

627-28 (1982)). In fact, “[I]t is an appellate court’s function to presume that the trial court made

the requisite findings of fact to support its decision. And those findings of fact ‘will not be

disturbed unless plainly wrong or without evidence to support [them].’” Holland, ___ Va. at ___

(second alteration in original) (quoting Jones v. Commonwealth, 29 Va. App. 503, 512 (1999)).

We conduct our review with due deference to the trial court’s ability to assess witness credibility

and testimony. See Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 223 (2023).

19 In a recent case, our Supreme Court discussed the principles of appellate deference at length. The Court stated as follows:

Appellate Courts are courts of review, not first view. When evaluating factual or credibility determinations, [appellate courts] do not put [themselves] in the shoes of a trial judge and ask, “What would we have done?” Rather, we are confined to a cold record, with its attendant absence of the evidentiary nuances and subtleties observed only by the trial court.

Still, we are not automatons, and may unsurprisingly feel the tug of our own collective experiences pressing us to put aside the appropriate standard of review to impose a result closer to our own notions of correctness. This tug can be compelling, even when appellate review requires a court to analyze the evidence in the light most favorable to the prevailing party and to leave a trial court’s finding undisturbed absent plain error or a clear abuse of discretion.

And while we may understand and even appreciate the impulse, it should not happen.

Holland, ___ Va. at ___ (reversing this Court’s decision to reinstate and grant a motion to withdraw a guilty plea). - 27 - II: Analysis

Under the proper standard of review, the evidence in the record of this case was more

than sufficient to support a verdict for Rafamedia on the basis of fraud, the ground that the

majority chooses to analyze.

Constructive fraud, one of the grounds that Rafamedia pled, presents a lesser burden for a

plaintiff than actual fraud. Unlike a claim for actual fraud, a constructive fraud claim does not

require that the maker of the false statement have the intent to mislead. See Richmond Metro.

Auth. v. McDevitt St. Bovis, Inc., 256 Va. 553, 557-58 (1998). Rather, constructive fraud

requires only “that a false representation of a material fact was made innocently or negligently,

and the injured party was damaged as a result of . . . reliance upon the misrepresentation.” Id. at

558 (alteration in original) (quoting Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289,

295 (1996)). Additionally, the reliance must be reasonable. Metrocall of Del., Inc. v. Cont’l

Cellular Corp., 246 Va. 365, 374 (1993).

The facts of this case narrow the relevant issue for our consideration to that of reasonable

reliance. There is no question that Norfolk Aviation, Philips’ seller-agent, made multiple

misrepresentations regarding the aircraft’s inventory. Nor is it disputed that these

representations were material, as Foreman provided unrebutted testimony that the presence of the

avionics system’s advanced tools, including ADS-B In, was important to his decision to purchase

the plane. Finally, Foreman clearly suffered damages due to the non-inclusion of the items;

according to expert testimony presented at trial, the aircraft was between $125,000 and $140,000

less valuable than it would have been had the parts been present. Thus, the only remaining

question is whether it was reasonable for Foreman to rely on the advertisement’s inaccurate

statements and the seller-agent’s explicit confirmation that at least part of what the advertisement

said was correct.

- 28 - Our review of reasonable reliance is guided by our case law. This review is highly fact

specific. Virginia law will not protect a party from his or her own “voluntary negligence.”

Costello v. Larsen, 182 Va. 567, 571 (1944). On the other hand, in Virginia, one to whom an

inaccurate statement has been made is sometimes entitled to rely on that statement. See

Nationwide Ins. Co. v. Patterson, 229 Va. 627, 631 (1985) (“[I]n Virginia, one cannot, by fraud

and deceit, induce another to enter into a contract to his disadvantage, then escape liability by

saying that the party to whom the misrepresentation was made was negligent in failing to learn

the truth.” (citing Cerriglio v. Pettit, 113 Va. 533, 544 (1912))); Jordan v. Walker, 115 Va. 109,

116-17 (1913) (“Where it is established that there has been any fraudulent representation by

which a person has been induced to enter into a contract, it is no answer to his claim to be

relieved from it to tell him that he might have known the truth by proper inquiry.”).

Our review of reasonable reliance is attentive to certain factors that Virginia courts have

found especially relevant in navigating the question. One important factor has been the buyer’s

possession, or lack, of information that should put him on notice that the statements may be

inaccurate. See Walker, 115 Va. at 116-17 (purchaser of company stock was reasonable in

relying on misrepresentations in part because he had no reason to suspect that sellers of company

were working against him); Metrocall, 246 Va. at 375 (misled party’s reliance on certain

misrepresentations was unjustified where they occurred in the context of the parties’ negotiation

of a settlement for the misleading party’s alleged fraud); Horner v. Ahern, 207 Va. 860, 864

(1967) (stating the rule that “if a purchaser is given or secures information as to the condition of

property such as would excite the suspicions of a reasonably prudent man, he is then under a

duty to ascertain the true condition for himself and cannot rely upon the representations of the

vendor” (emphases added)).

- 29 - Another important factor that we must consider has been a seller’s having taken any

actions that dissuaded the purchaser from conducting further investigation himself. See

Armentrout v. French, 220 Va. 458, 466 (1979) (“[T]he seller ‘must not say or do anything to

throw the purchaser off his guard or to divert him from making the inquiries and examination

which a prudent man ought to make.’” (quoting Horner, 207 Va. at 864)). Finally, our courts

have also noted that when a party undertakes his own partial investigation “into the subject

matter at hand,” such a party is treated as “bound by all that a complete investigation would have

disclosed.” Harris v. Dunham, 203 Va. 760, 767-68 (1962). This Court should consider all

these factors in assessing whether there was sufficient evidence to support the reasonable

reliance element of Rafamedia’s (constructive) fraud claims against Norfolk and Phillips.

III: Analysis of the Record’s Evidence of Reasonable Reliance

In this case, the evidence available for the factfinder was sufficient to satisfy our

standards for reasonable reliance. A finding that Foreman reasonably relied on Norfolk

Aviation’s repeated misrepresentations would not have been plainly wrong or without evidence

to support it—to the contrary, substantial evidence supported that conclusion. The evidence

showed that Norfolk Aviation repeatedly misrepresented the avionics equipment that would

come with the aircraft, and the model-year of the relevant aircraft, in a way that a reasonable

person would rely on.

First, the material facts included numerous indicators that our courts have valued in

determining reliance reasonable. For one, there was no apparent reason why Foreman should

have suspected that the seller-agent’s advertisements or statements were inaccurate. See Walker,

115 Va. at 116-17; Metrocall, 246 Va. at 375. Unlike in Metrocall, there was no evidence that

either party had previously accused the other of dishonesty. See 246 Va. at 375. Neither

appellant has put forth any convincing reason why the purchaser of an aircraft should expect that

- 30 - a seller’s explicit statements regarding aircraft inventory and model year—in advertisements, and

from person to person, via email—are likely to be inaccurate.

The record also showed that Foreman was explicitly reassured by the seller-agent that

certain parts listed in the inaccurate advertisement were in fact present in a way that would have

led any reasonable buyer to be “diverted” from further investigation. Foreman wrote an email to

the seller-agent on December 25, 2020, reading “PLS CONFIRM THAT 718VB HAS . . .

ADS-B ‘IN’???” Hours later, he received a response that simply read, “Yes indeed!” This

response, clearly affirming that the aircraft possessed ADS-B In, was sufficient to support the

conclusion that the seller-agent “thr[ew] [Foreman] off his guard” or “divert[ed]” him from

making further inquiry. See Armentrout, 220 Va. at 466. Viewed in the light most favorable to

Rafamedia, it is reasonable to infer that this confirmation not only reassured Foreman as to the

presence of ADS-B In, but reassured him as to the accuracy of the advertisement generally.

Additionally, it assured that the aircraft was a 2018 because ADS-B In was not available on 2017

models. In ruling in favor of Rafamedia, this credible evidence supports the trial court’s

decision.

The majority states that the case at hand can be distinguished from Armentrout due to the

seller-agent’s lack of intent to prevent Foreman from conducting further investigation. There are

notable differences between this case and Armentrout. But significantly, Armentrout’s rule is not

simply about a seller’s deceptive intent. Armentrout is about the diversionary effects of certain

misleading actions on a reasonable person’s decision to investigate. The role that Armentrout’s

“throw the purchaser off his guard or . . . divert” exception played was as a “very important

exception” to the purchaser’s duty to investigate further—i.e., inability to reasonably rely—in

certain specific cases: when he has received information to “excite the suspicions of a reasonably

prudent person.” See id. Thus, the broad question in Armentrout remained the reasonableness of

- 31 - the purchaser’s decision to rely on a seller’s misrepresentations. Here, as in Armentrout, the

purchaser began to inquire about a particular subject, in reaching out to confirm that one of the

advertised avionics was in fact present—and was quickly reassured that there was nothing to

worry about. Foreman testified that he did in fact rely on this confirmatory email. Regardless of

any intent to mislead, this reassurance would naturally have had a diverting effect on the

purchaser’s likely investigation and made it more reasonable for him to rely on the

advertisement. And the evidence showed that it did have such a diversionary effect on Foreman,

who “trust[ed] aircraft sales people intrinsically” and accepted the reassuring email as true.

The majority also emphasizes the Fourth Circuit case, Hoover Universal, Inc. v.

Brockway Imco, Inc., 809 F.2d 1039, 1041-42, 1044 (4th Cir. 1987). This case does not govern

our review. Numerous Virginia cases, previously discussed, adequately set forth the rule for

reasonable reliance applicable in Virginia courts. Fourth Circuit case law is at most persuasive,

and not binding authority, for Virginia state courts. See Toghill v. Commonwealth, 289 Va. 220,

227 (2015). Additionally, Hoover is not persuasive in this context, as it is factually distinct from

the case at hand in important ways. In Hoover, the misrepresentation consisted of only one

mistaken advertising handout. 809 F.2d at 1041. In this case, the seller-agent posted an

inaccurate advertising listing, provided an inaccurate advertising handout, and explicitly

confirmed the advertisement’s accuracy when asked about a potential discrepancy, throwing the

buyer off the scent of any potential mistakes. See Armentrout, 220 Va. at 466. Additionally,

there is no indication that the defect in Hoover, as in this case, was difficult to ascertain, being

“embedded in the background in the software.”

Additionally, in response to the majority’s emphasis of Foreman’s familiarity with the

aircraft purchasing industry, we must stress that a buyer in any case is only a buyer. The

assignment of the label, “sophisticated buyer,” to Foreman does not elevate or diminish the legal

- 32 - standard applicable to the seller’s duty to provide truthful representation—an experienced buyer

cannot be expected to detect and see past a seller’s repeated misrepresentations more than any

other buyer.

The majority also emphasizes that Foreman did not fully investigate the seller’s

non-erroneous equipment list, instead relying on the seller’s inaccurate equipment list. Because

the evidence indicates that Foreman at least partially reviewed the equipment list provided in the

marketing brochure—and discovered what he perceived to be a potential discrepancy, prompting

his inquiry as to the presence of ADS-B In—the majority states that Foreman should be held to

the information that the non-erroneous equipment list would have revealed. For the reasons

previously stated, however, I would hold that the affirmative, misleading response that Foreman

received after inquiring about the contents of the equipment list in the seller’s brochure was

sufficient evidence to support the finding that Foreman was “throw[n] . . . off [his] guard” or

“divert[ed]” from examining these records in detail. See Armentrout, 220 Va. at 466.

Additionally, the appellants do not explain why it was unreasonable for Foreman to rely on one

of the informational documents it provided him as opposed to their later document. The seller

provided both documents. Providing a buyer with an inaccurate document, reassuring the buyer

as to its accuracy, and then “tell[ing] him that he might have known the truth by proper inquiry”

into a second, more accurate document that the seller provided later should not be a means of

avoiding liability. Walker, 115 Va. at 117.

Additionally, the record indicated that the logbook in Foreman’s possession—one of the

items that the majority faults Foreman for not having reviewed in depth—may have introduced

more mixed signals and confusion upon further review, rather than revealing to Foreman that he

had been misled. The logbook had previously indicated that the aircraft was a 2017 model (a

model incompatible with the relevant avionics), but according to Rafamedia’s expert witness, “at

- 33 - some point, someone put a sticker over the 2017 and changed it to 2018.” For a buyer who had

bought a 2018-model plane with advertised 2018-model avionics, and who had been explicitly

reassured that those advertisements were correct, this altered logbook—even if lacking the

relevant equipment—would have brought about no further clarity. Instead, the trial judge—

making factual determinations that we must grant deference on appeal when reasonable—may

have reasonably regarded this logbook as closer to a further reaffirmation of Norfolk Aviation’s

prior false advertising than a reversal.

Additionally, Foreman’s partial virtual inspection of the plane’s physical condition—

what Foreman could see—should not bind him to imputed knowledge about the plane’s avionics,

which were “embedded in the background of the software.” The evidence indicated that the

purpose of the inspection was not to determine whether the plane contained its advertised

inventory, but to assess the physical condition of the plane. Foreman recounted performing “a

walk-around of the aircraft to the wing, the de-ice boots, the inside of the cabin to be sure the

seats weren’t ripped up.” Klink recalled discussing a scratch on a door “and some blemishes on

the leather.” And the expert testimony presented at trial indicated that the limitations of this

inspection were consistent with those of standard inspections performed in the industry. While

the appellants’ expert witness testified that a typical inspection would have involved confirming

all equipment, Jared Gowlis, Rafamedia’s expert witness—whose testimony we must accept on

appeal—testified the complete opposite: that it would be completely abnormal to request such an

in-depth inspection. Gowlis testified as follows:

I honestly have never had anyone give me the spec sheet for the aircraft and say, “hey, check this all out to make sure that everything that’s in this listing is accurate.” Our shop has conducted prepurchase evaluations where we checked for the current maintenance status and safety status of the aircraft, but not to the detailed level of checking the specification sheets.

- 34 - Given our mandate to view the evidence in the light most favorable to the prevailing

party, this testimony and expert evidence indicates that the virtual inspection performed by

Foreman—in line with the average physical inspection performed in the industry—was not an

all-inclusive investigation into the subject of whether the plane contained all its advertised

components. See Rowe v. Rowe, 24 Va. App. 123, 140 (1997) (“Where experts offer conflicting

testimony, it is within the discretion of the trial court to select either opinion.”). Rather, it was an

investigation into the plane’s physical condition. A full investigation into that condition (“the

subject matter at hand”) would not have revealed the accuracy of every item listed on the

erroneous equipment list or the presence of the avionics. See Dunham, 203 Va. at 767.

And, even if we were inclined to ask Foreman to investigate beyond what is customary in

the industry, the evidence in the record suggested that the presence of the avionics would not

have been easy—or, potentially, even possible—for someone to detect who chose to investigate

on his own. This is because the avionics, as Foreman testified, were “embedded in the

background in the software.” Therefore, he testified that not only were the avionics not ignited

during the virtual inspection, but they would not have been possible to detect even if the system

were ignited. Klink’s testimony added another complicating factor: he testified that

understanding the avionics’ presence required a degree of sophistication. Klink testified that the

avionics would have been (and, according to him, were) shown upon ignition of the avionics

master, but admitted that he did not know this was the case because he himself was not able to

recognize the avionics from the display. Viewed in the light most favorable to Rafamedia, this

testimony indicated that the avionics’ presence would not have been possible for Foreman to

glean even if Klink had turned the system on during the investigation, or that, at the very least, it

required expertise to identify—and there was no evidence that Foreman possessed that expertise.

- 35 - The majority’s emphasis that Foreman had the opportunity to physically inspect the plane

disregards the substantial evidence before the court that such an inspection, focused on verifying

the complete accuracy of the equipment list, would have far surpassed the standard inspection

usually performed in the industry, and the evidence that a physical inspection would not have

likely revealed the relevant issue.

In sum, the evidence before the trial court was more than sufficient for the trial court to

make the factual finding required to meet the standard of the fraud doctrine that the majority

focuses on: that Foreman reasonably relied on the seller-agent’s repeated misrepresentations in

choosing to purchase the aircraft. Undoubtedly, a false representation of material fact was made

to Rafamedia. It was made innocently or negligently. Nevertheless, Rafamedia was damaged as

a result of its reasonable reliance upon the misrepresentation. See Richmond Metro., 256 Va. at

557-58.

A general verdict may have multiple reasons. A precise reason is not required. As long

as the record supports a reasonable basis for the verdict, the trial court’s decision should be

upheld. This Court should have reached and considered all of Rafamedia’s claims against the

appellants.

Additionally, even on the claim that the majority chooses to analyze, the evidence was

more than sufficient to sustain the verdict for Rafamedia. There is no disagreement that

Rafamedia was provided with incorrect and misleading information. The record states that

Richard Foreman, Rafamedia’s managing member, purchased an aircraft in reliance on

inaccurate statements made in an online listing and an advertising brochure, and in reliance on a

subsequent email affirmation of those statements. All parties knew the expectations of the buyer,

Rafamedia: to purchase a 2018 aircraft that possessed an avionics system that included various

- 36 - tools within the software, including ADS-B In. Norfolk Aviation, LLC, the seller-agent for

Phillips Avenue Holdings, LLC, falsely represented in its advertisement and via email that these

embedded features were included in the aircraft’s software. In response, Foreman “took the

seller’s word for it.” In these circumstances, in which the buyer had no reason to suspect that it

was unreasonable to rely on misrepresentations, in which he was specifically reassured of their

veracity, and in which the inaccuracy of those statements was outside the scope of a typical

pre-buy inspection in the industry, the evidence clearly supports the trial court’s verdict for

Rafamedia.

The record undoubtedly supports the trial court’s verdict. Foreman provided unrebutted

testimony that the presence of the avionics system’s advanced tools, including ADS-B In, was

important to his decision to purchase the plane. Additionally, Norfolk Aviation knew and

acknowledged Rafamedia’s expectations, and asserted that those specific features were included,

despite knowing that these features were essential. The seller repeatedly, falsely affirmed the

avionics’ presence.

The trial court used a general verdict. This Court cannot attempt to ascertain the true

reason for the judge’s verdict and must rely on any reasonable basis in the record—not just the

bill of particulars, a supplemental motion—that supports the trial court’s decision. Here, in

reviewing the entire record and all evidence available to the trial judge, there was more than

sufficient evidence in the record to support the general verdict for Rafamedia.

For all these reasons, I would affirm the trial court’s judgment for Rafamedia.

- 37 -