COURT OF APPEALS OF VIRGINIA PUBLISHED
Present: Judges Ortiz, Raphael and Senior Judge Annunziata Argued at Fairfax, Virginia
SAAD BENKIRANE OPINION BY v. Record No. 1100-24-4 JUDGE DANIEL E. ORTIZ JULY 29, 2025 CITY CONCRETE CORP.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY David A. Oblon, Judge
Rachel L. Yates (Law Office of Rachel Yates, PLLC, on briefs), for appellant.
Richard G. Cole, III (James R. Hart; Edward W. Cameron; Armstrong Teasdale LLP; Hart & Horan, P.C.; Cameron/McEvoy PLLC, on brief), for appellee.
Saad Benkirane brought a claim against City Concrete Corp. (“City Concrete”) alleging
violations of the Virginia Consumer Protection Act (“VCPA”), Code §§ 59.1-196 to -207, breach
of contract, and fraud in the inducement. The trial court sustained City Concrete’s demurrer as
to the VCPA claim. City Concrete also counterclaimed alleging breach of contract. Following
trial, City Concrete prevailed before a jury on all counts. On appeal, Benkirane challenges the
trial court’s sustaining City Concrete’s demurrer and the court’s refusal to grant two of his
proposed jury instructions. Because we find that the VCPA did not apply to this transaction and
that the trial court did not otherwise err in refusing Benkirane’s proposed instructions, we affirm.
BACKGROUND
City Concrete is a contractor specializing in commercial and residential concrete
construction, including associated tasks like demolition and excavation. City Concrete obtained
a Class A contractor’s license from the Virginia Department of Professional and Occupational Regulation’s (“DPOR”) Board for Contractors (“Board”) in 2009. City Concrete subsequently
renewed its license several times. Under Code § 54.1-1106(A) and (E), a contractor must have a
“designated employee” who has “successfully complete[d] [an] examination and . . . meets or
exceeds the other entry criteria established by Board regulations.” The statute provides that the
contractor’s license “shall permit the applicant to engage in contracting only so long as the
designated employee is in the fulltime employment of the contractor or is a member of the
contractor’s responsible management.” Implementing the statutory requirement, the Virginia
Administrative Code requires that a Class A licensed contractor maintain a “designated
employee” who, among other requirements, is “a full-time employee . . . or is a member of the
responsible management of the firm.” 18 VAC 50-22-60(B)(2). The contractor must also
maintain, “[f]or every classification or specialty in which the firm seeks to be licensed,” a
“qualified individual” who, in addition to other qualifications, “[i]s a full-time employee of the
firm . . . or is a member of the firm . . . or is a member of the responsible management of the
firm.” 18 VAC 50-22-60(C)(3).
City Concrete named Eric Clark as its designated employee and qualified individual on
file with DPOR in 2009. Clark transitioned to part-time status with City Concrete as an
independent contractor in 2013 and left the company altogether in 2022. But, until at least late
2023, he remained listed as City Concrete’s designated employee and qualified individual on file
with DPOR.1 Harold Shrewsberry joined City Concrete in 2012, becoming its general manager
in 2014. James DeSantis, a City Concrete vice president, was in charge of DPOR matters when
Shrewsberry joined the company. Shrewsberry assumed responsibility for DPOR matters when
DeSantis left, but he was aware of neither the identity of City Concrete’s “designated employee”
1 The parties and the trial court used the terms “designated employee” and “qualified individual” interchangeably, and the distinction is not relevant to our analysis. -2- nor the requirement to update that designation with DPOR as personnel assignments changed
within the company. Shrewsberry became aware of the requirement to appoint a new designated
employee only after receiving a DPOR complaint in connection with the events described below.
The subsequent DPOR investigation revealed that Clark was designated as City
Concrete’s qualified individual in October 2009 but had transitioned to a part-time role in 2013
and left City Concrete altogether in 2022. The investigation further revealed that, despite his
change in status and subsequent departure from the company, Clark remained listed as City
Concrete’s qualified individual until at least October 2023; City Concrete had failed to appoint a
new qualified individual and designated employee and report the change to DPOR as required by
the Administrative Code. As a result of this investigation, City Concrete entered into a consent
order with DPOR in December 2023. Under the terms of this order, City Concrete agreed to pay
$3,450 in penalties and $150 in costs, to “report a change to the qualified individual to the Board
within . . . [180] days of . . . the order,” and to “have a member of Responsible Management
successfully complete a Board-approved remedial education class.”
The events giving rise to this action began in 2017, when Saad Benkirane made plans to
demolish the structure on a previously acquired lot and erect a new dwelling in its place. He
searched for licensed contractors on the DPOR website, found City Concrete, and made contact.
City Concrete sent him draft contracts for review, and City Concrete’s owner and president Jorge
Neiva met Benkirane at Benkirane’s office. At that meeting, Neiva conveyed to Benkirane that
“City Concrete was permitted to engage in concrete contracting in Virginia.”
City Concrete and Benkirane subsequently executed two agreements. One provided for
City Concrete to demolish the existing structure and install a silt fence and construction entrance
on the site. The other required City Concrete to pour concrete for slabs, footings, planter boxes,
walls, stairs, and stoops for a dwelling and detached garage on the site; provide waterproofing
-3- and termite treatment; and install exterior drain tile. Benkirane signed these agreements as the
“Authorized Rep.” for the “General Contractor/Builder,” which the agreements named as “GW
Real Estate Enterprise” (“GWRE”).
City Concrete began work on the project in April 2017 and ceased work in December of
that year, having received $22,300 in payments for work performed and leaving a balance due of
$50,060. Benkirane initiated the present litigation in December 2022, following the nonsuit of
prior litigation between the parties. In his complaint, Benkirane alleged three counts and
attached the above-mentioned agreements. First, he alleged that City Concrete violated the
VCPA, and, specifically: that the agreements “state[d] that the project [wa]s for ‘Sam Benkirane
[r]esidence,’” that City Concrete “misrepresented the timeframe” for the work and “that it would
provide turnkey services to Benkirane,” that City Concrete “misrepresented the materials that it
would use,” that it “misrepresented that it had a valid contractor’s license issued by DPOR,” and
that City Concrete “accepted money and/or invoiced Benkirane for [w]ork not completed and
without ever intending to complete the [w]ork.” Second, he alleged breach of contract, asserting
that City Concrete “fail[ed] to complete the work . . . in a workmanlike and quality manner and
fail[ed] to use the material it represented in the [a]greements it would use.” And, finally,
Benkirane charged fraud in the inducement, alleging inter alia that City Concrete and Neiva
“made false representations of material fact . . . that . . . City [Concrete] . . . had the necessary
qualifications required by DPOR to . . . work on the property in the Commonwealth of Virginia.”
In his view “City [Concrete] did not possess the appropriate license under Virginia law because
its [q]ualified [i]ndividual was a part-time marketing representative with no construction
supervision duties of any manner.” City Concrete filed a counterclaim setting forth two counts
for breach of contract based on Benkirane’s nonpayment for work completed under the
agreements.
-4- City Concrete demurred to counts I and III of Benkirane’s complaint, which the trial
court sustained with leave to refile. Benkirane then filed an amended complaint, reciting the
same counts as set forth in his original complaint. City Concrete again demurred as to counts I
and III, arguing in pertinent part that “Benkirane still fail[ed] to allege facts establishing a
consumer transaction” because the party in interest in the contracts was “GW Real Estate
Enterprise,” not Benkirane. The trial court again sustained City Concrete’s demurrer, this time
without leave to amend. Benkirane filed a motion to reconsider the trial court’s ruling, arguing
in part that “the work was performed on [his] personal residence, satisfying the VCPA’s broad
definition which includes transactions for goods or services for ‘personal, family, or household
purposes’” and that he had “adequately pleaded the elements of fraud.”
In an opinion letter and order, the trial court denied Benkirane’s motion to reconsider as
to his VCPA claim but granted it as to his fraud in the inducement claim.2 See Benkirane v. City
Concrete Corp., 112 Va. Cir. 351 (Fairfax 2023). As to Benkirane’s VCPA claim, the trial court
found that the parties to the agreements were City Concrete and GWRE and that Benkirane was
merely the authorized representative of GWRE. Id. at 353. The trial court observed that, under
Code § 59.1-198, a “‘[c]onsumer transaction’ means: ‘1. The . . . sale . . . of goods or services to
be used primarily for personal, family or household purposes . . . .’” Id. at 352 (alterations in
original). But, “as an [e]nterprise,” the court continued, GWRE “would not engage in personal,
family or household activities. Rather, those goods and services” provided under the agreements
“were to be used for a commercial purpose, i.e., the construction of a residential building by
[GWRE].” Id. Under the plain language of Code § 59.1-198, the trial court concluded, “the
contracts between [GWRE] and [City Concrete] were not ‘[c]onsumer transactions.’” Id. at 353.
2 Judge Oblon presided at trial, but Judge Richard E. Gardiner drafted this opinion letter and entered the accompanying order, as well as the order partially denying Benkirane’s motion to reconsider. -5- The case proceeded to a jury trial on Benkirane’s remaining counts and on both counts of
City Concrete’s counterclaim. As relevant to this appeal, the trial court refused two of
Benkirane’s proposed jury instructions—Plaintiff’s Jury Instructions 10 and 15. Proposed Jury
Instruction No. 10 stated, “If City Concrete Corp.’s contracts with Benkirane were for
contracting by City Concrete Corp. in violation of Virginia law, City Concrete Corp. is
prohibited from claiming any amount due under the contract.” Benkirane argued that this
instruction was appropriate because, in his view, it was “[s]upported by the evidence . . . that
there [was] illegality in the performance of contracting work by City Concrete,” referring to City
Concrete’s failure to update its designated individual. City Concrete objected that Benkirane had
not pleaded the legal basis for this instruction and further argued that the instruction did not
correctly state Virginia law insofar as it failed to disclose the existence of a safe harbor set forth
in Code § 54.1-1115(C). The trial court refused the instruction, and Benkirane did not proffer an
alternative. Benkirane’s proposed Instruction No. 15 stated, “If you find that City Concrete
furnished defective materials or workmanship, you shall find that City Concrete breached its
contract with Benkirane.” City Concrete objected that the instruction was duplicative of other
accepted jury instructions, while Benkirane argued that it was necessary because no other
instruction “directly addresse[d] defects in materials and workmanship.” The trial court refused
the instruction on the ground that it was “subsumed in the breach of contract instruction” that the
jury was already being given.
At trial, City Concrete presented testimony and evidence describing the amount and
quality of the work completed under the contract and how Benkirane failed to pay $50,060 due
on the work. City Concrete also adduced evidence that it was unaware of the requirement to
update its qualified person and designated individual and that its failure to do so was unknowing
and had no impact on Benkirane’s project. Benkirane provided testimony alleging that City
-6- Concrete had not completed the work, that there had been problems with materials and
workmanship, and that City Concrete had deceived him about its licensure status. The jury
found in favor of City Concrete on all counts, denying Benkirane any relief and awarding City
Concrete $50,060 on its counterclaims. The trial court entered a final order to this effect on May
31, 2024.
Benkirane filed a “Motion to Set Aside Verdict or Award a New Trial Regarding
Counterclaim,” asserting that the trial court erred in refusing his proposed Instruction No. 10.
The trial court denied this motion, finding, in pertinent part, that the proposed instruction
“misstate[d] the law” by failing to address the safe harbor provision noted above and, in the
alternative, that “any instruction error was obviously harmless” because another instruction
informed the jury that “a contractor must have a proper ‘designated employee.’” The court
found that, notwithstanding this requirement, the jury’s verdict was rational because it could
have determined that “(1) [City Concrete] gave substantial performance, and (2) [it] proved it
was unaware its designated ‘designated employee’ was improper.”
Benkirane timely appealed.
ANALYSIS
On appeal, Benkirane raises three assignments of error. He asserts: that the trial court
erred in sustaining City Concrete’s demurrer and in denying his request to reconsider the same,
that the trial court erred in refusing his proposed Jury Instruction No. 10 and in denying his
motion to set aside the verdict, and that the trial court erred in refusing his proposed Jury
Instruction No. 15. We address each in turn.
I. The trial court did not err in sustaining City Concrete’s demurrer as to the VCPA claim.
Below, City Concrete demurred to Benkirane’s VCPA claim on the ground “that the
transaction at issue is not encompassed by the VCPA because the transaction was a commercial
-7- transaction, not a ‘consumer transaction’ within the meaning of the VCPA.” Benkirane, 112 Va.
Cir. at 351. Benkirane countered that “the VCPA ‘does not require the consumer to directly
contract with the supplier, so long as the work was for personal, residential purposes.’” Id. at 353.
The trial court sided with City Concrete, sustaining its demurrer and partially denying Benkirane’s
motion to reconsider. Id.
“The purpose of a demurrer is to determine whether a motion for judgment states a cause of
action upon which the requested relief may be granted.” Augusta Mut. Ins. Co. v. Mason, 274 Va.
199, 204 (2007) (quoting Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 712 (2006)). “A
demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof.” Id.
(quoting Glazebrook v. Bd. of Supervisors, 266 Va. 550, 554 (2003)). “Because the decision
whether to grant a demurrer involves issues of law, we review the circuit court’s judgment de
novo.” Id. (quoting Dreher v. Budget Rent-A-Car Sys., 272 Va. 390, 395 (2006)). And “we accept
as true all properly pled facts and all inferences fairly drawn from those facts.” Id.
“The VCPA was enacted with ‘the intent of the General Assembly that [it] shall be applied
as remedial legislation to promote fair and ethical standards of dealings between suppliers and the
consuming public.’” Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 361 (2010) (alteration in
original) (quoting Code § 59.1-197). The Act prohibits certain “fraudulent acts or practices
committed by a supplier in connection with a consumer transaction,” including “[u]sing any . . .
deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer
transaction.” Code § 59.1-200(A)(14). It defines “consumer transaction,” in relevant part, as “[t]he
advertisement, sale, lease, license or offering for sale, lease or license, of goods or services to be
used primarily for personal, family or household purposes.” Code § 59.1-198.
Benkirane asserts that he “properly pled his claims under the VCPA.” He alleges that the
agreements list his “company (GW Real Estate Enterprise) as builder . . . due to an email address he
-8- used” in communicating with City Concrete, which City Concrete mistook as the contracting entity.
He argues that he “pled that the ‘permits and plans provided to City Concrete listed Mr. Benkirane
personally as the permit holder’ and were applied for ‘in his own name as the owner of the Project’
rather than as a commercial contractor.” Benkirane further argues that his amended complaint
“alleged that when he met with [City Concrete]’s owner to discuss the proposal, they were both
aware that the project was for [Benkirane]’s ‘personal use’ and not for a ‘commercial venture.’”
Benkirane both misunderstands the requirements of the VCPA and misinterprets the nature of this
transaction.
First, although “we accept as true all properly pled facts and all inferences fairly drawn from
those facts,” Augusta Mut. Ins. Co., 274 Va. at 204, we may “disregard[]” any “factual allegations
contradicted by the terms of authentic, unambiguous documents that are a part of the pleading,”
Smith v. Chesterfield Meadows Shopping Ctr. Assocs., L.P., 259 Va. 82, 85 (2000). Benkirane
attached both agreements as exhibits to his amended complaint. As the trial court observed, both
agreements “identify the ‘[b]uilder’ as ‘GW Real Estate Enterprise,’” and describe City Concrete as
a “[s]ubcontractor.” Benkirane, 112 Va. Cir. at 351. Further down, after a “paragraph entitled
‘Acceptance of Proposal’ . . . there is a line for ‘[a]ccepted: [s]ignature’” containing Benkirane’s
signature, “followed by a line for ‘Title’ on which is typed ‘[a]uthorized [r]ep.’” Id. at 351-52. By
their own terms, these provisions show that City Concrete contracted with GWRE—with Benkirane
as GWRE’s agent—and plainly contradict any inference to the contrary drawn from Benkirane’s
pleadings. As “often stated, ‘the parties’ contract becomes the law of the case unless it is repugnant
to some rule of law or public policy.” Rash v. Hilb, Rogal & Hamilton Co., 251 Va. 281, 285
(1996) (quoting Winn v. Aleda Const. Co., 227 Va. 304, 307 (1984)). Additionally, “we ‘must give
effect to the intention of the parties as expressed in the language of their contract, and the rights of
the parties must be determined accordingly.’” Id. at 286 (quoting Foti v. Cook, 220 Va. 800, 805
-9- (1980)). Here, the parties structured their agreement as one between two commercial entities, and
we decline to upset that intention.
In that vein, we are also unpersuaded by Benkirane’s argument that the agreements were in
GWRE’s name because of a misunderstanding by City Concrete. This argument derives from
Benkirane’s allegation in the amended complaint that, “[u]pon information and belief, Ms. Loretta
Kilby, an administrative employee of City Concrete, drafted Agreement I and addressed it to GW
Real Estate Enterprise due to an email address used by Mr. Benkirane to communicate with City
[Concrete].” As an initial matter, this allegation made “[u]pon information and belief” is
speculative. Cf. Walsh v. Walsh, 177 Va. 174, 190 (1941) (“[T]his is not an allegation of fact. It is
an allegation based on information and belief and is not to be taken as true on a hearing on the bill
and answer.”). But, even if we accepted it, we give “no weight” to inferences drawn from the facts
pleaded in the complaint “to the extent that they are unreasonable,” which is to say, to the extent
“the inferences are strained, forced, or contrary to reason.” Patterson v. City of Danville, 301 Va.
181, 197 (2022) (quoting Doe ex rel. Doe v. Baker, 299 Va. 628, 641 (2021)). In his complaint,
Benkirane twice held himself out as someone with “professional experience in real estate”; it would
be unreasonable to infer that Benkirane expressly affirmed in writing that GWRE was the
contracting party—simultaneously naming himself as the “[a]uthorized [r]ep.”—without intending
it to be so.
Finally, Benkirane argues that, even if the agreements were between two commercial
parties, they still fit within the VCPA’s definition of “consumer transaction.” In his estimation,
because the agreements between GWRE and City Concrete would ultimately result in the
construction of Benkirane’s personal residence, they were services “to be used for personal, family,
and household purposes.” Code § 59.1-198 (emphasis added). We disagree.
- 10 - “The primary objective of statutory construction is to determine legislative intent. In
determining that intent, words are to be given their ordinary meaning, unless it is apparent that the
legislative intent is otherwise.” Cox v. Commonwealth, 73 Va. App. 339, 344 (2021) (quoting
Phelps v. Commonwealth, 275 Va. 139, 142 (2008)). “In interpreting statutes according to their
ordinary meaning, this Court considers them in pari materia, meaning [we] will not examine
statutes ‘as isolated fragments of law, but as a whole, or as parts of a great connected, homogenous
system, or a single and complete statutory arrangement.’” Id. at 344 (quoting Prillaman v.
Commonwealth, 199 Va. 401, 405 (1957)). With respect to the VCPA, the General Assembly
explicitly stated that its intent was “to promote fair and ethical standards of dealings between
suppliers and the consuming public.” Code § 59.1-197 (emphasis added). Further, our rules of
construction “discourage any interpretation of a statute that would render any part of it useless,
redundant or absurd.” Tanner v. Commonwealth, 72 Va. App. 86, 101 (2020) (quoting Spratley v.
Commonwealth, 298 Va. 187, 195-96 (2019)).
Benkirane’s interpretation of Code § 59.1-198’s “consumer transaction” definition is
strained, counter to the legislative purpose, and would lead to an absurd result. Under his logic, any
transaction resulting in an end-product that is ultimately used for “personal, family, or household
purposes” fits within the definition. But, under the statute, the phrase “to be used” plainly modifies
“goods or services”; put differently, the relevant question is whether the bargained-for “goods or
services” are “to be used” for personal purposes, not whether any eventual end-product to which the
goods or services contribute is for personal use. Code § 59.1-198 (emphasis added). This
interpretation is consistent with the VCPA’s express legislative purpose “to promote fair and ethical
- 11 - standards of dealings between suppliers and the consuming public,” rather than dealings between
commercial entities throughout the supply chain.3 Code § 59.1-197 (emphasis added).
Here, as articulated above, Benkirane chose to structure the agreements as a commercial
transaction between a “General Contractor/Builder,” GWRE, and a “subcontractor,” City Concrete.
As the trial court persuasively observed:
the contracts between [GWRE] and [City Concrete] were not “[c]onsumer transactions” because the goods and services to be used pursuant to those contracts were not to be used “primarily for personal, family or household purposes” of [GWRE] . . . . Rather, those goods and services were to be used for a commercial purpose, i.e., the construction of a residential building by [GWRE].
112 Va. Cir. at 353 (emphasis added).
We agree with the trial court’s reasoning,4 and Benkirane’s attempt to expand the scope of
the VCPA’s “consumer transaction” definition is unavailing. We accordingly affirm the trial
court’s judgments sustaining City Concrete’s demurrer as to the VCPA claim and partially denying
Benkirane’s motion to reconsider.
II. The trial court did not err in refusing Benkirane’s proposed Jury Instruction No. 10.
Benkirane’s proposed instruction read: “If City Concrete Corp.’s contracts with
Benkirane were for contracting by City Concrete Corp. in violation of Virginia law, City
Concrete Corp. is prohibited from claiming any amount due under the contract.” Benkirane
3 To illustrate: picture a car manufacturer contracting with a battery manufacturer to supply batteries for its vehicles; under Benkirane’s logic, if the ultimate end-product is a vehicle “to be used primarily for personal, family, or household purposes,” this contract between two commercial entities would constitute a “consumer transaction”—an absurd result. 4 In the omitted portion of the above quotation, the trial court implied that a commercial entity could never engage in a “consumer transaction” within the meaning of the VCPA, stating that GWRE, “as an Enterprise[,] would not engage in personal, family, or household activities.” 112 Va. Cir. at 353. To the extent the court intended such a categorical exclusion, we decline to endorse that portion of its reasoning. As our concurring colleague notes, whether the “VCPA provides . . . protection to a natural person who employs a legal entity to engage in a consumer transaction” remains an open question. Infra at 19 (Raphael, J., concurring). - 12 - argues that this instruction was supported by the evidence because it is “undisputed that City
[Concrete] violated . . . Code § 54.1-1106(E) by engaging in contracting . . . when it did not have
a qualifying designated employee.”
“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law
has been clearly stated and that the instructions cover all issues which the evidence fairly
raises.’” Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019) (quoting Darnell v.
Commonwealth, 6 Va. App. 485, 488 (1988)). “[T]he office of an instruction ‘is to fully and
fairly inform the jury as to the law of the case applicable to the particular facts, and not to
confuse them.” Gaalaas v. Morrison, 233 Va. 148, 156 (1987) (quoting Southers v. Price, 211
Va. 469, 473 (1971)). “We review a trial court’s decisions in giving and denying requested jury
instructions for abuse of discretion.” Pegasystems Inc. v. Appian Corp., 81 Va. App. 433, 476
(2024) (quoting Conley v. Commonwealth, 74 Va. App. 658, 675 (2022)). But “[w]hether a
proffered jury instruction accurately states the law . . . is reviewed de novo.” Id. (quoting
Holmes v. Commonwealth, 76 Va. App. 34, 53 (2022)).
“It is a well settled principle of law that the courts will not aid a party to enforce an
agreement made in furtherance of objects forbidden by the statutes, or by common law, or
general policy of law.” Massie v. Dudley, 173 Va. 42, 52 (1939) (quoting Levy v. Davis, 115 Va.
814, 817 (1914)). As relevant here, Code § 54.1-1106(E) provides that a contractor must have a
“designated employee” who “is in the fulltime employment of the contractor or is a member of
the contractor’s responsible management.” But, in its order denying Benkirane’s motion to set
aside the verdict, the trial court found that Instruction No. 10 misstated the law because it failed
to account for a safe-harbor provision in the same chapter. Code § 54.1-1115(C) provides,
[A] construction contract entered into by a person undertaking work without a valid Virginia contractor’s license shall not be enforceable by the unlicensed contractor undertaking the work unless the unlicensed contractor (i) gives substantial performance - 13 - within the terms of the contract in good faith and (ii) did not have actual knowledge that a license or certificate was required by this chapter to perform the work for which he seeks to recover payment.
(Emphases added). On appeal, Benkirane argues that the “exception to the rule is inapplicable”
because City Concrete is not an unlicensed contractor; rather, “City [Concrete] had a license and
City Concrete knew it needed to be licensed—it simply did not comply with the mandates that
allowed it do work using its license.” We reject Benkirane’s argument for two reasons.
First, Benkirane took the position in his amended complaint that “City [Concrete] did not
possess the appropriate license under Virginia law because its Qualified Individual was a
part-time marketing representative.” The trial court agreed when reinstating Benkirane’s fraud
in the inducement claim on his motion to reconsider, finding that Benkirane’s “allegations about
Mr. Clark, i.e., that he was City [Concrete]’s ‘Designated Employee for purposes of maintaining
its DPOR license’ and that he ‘was not a full-time employee or officer of City [Concrete],’ are
sufficient, pursuant to Code § 54.1-1106(E), to show that City [Concrete] was unlicensed.”
Benkirane, 112 Va. Cir. at 355 (emphasis added). The trial court continued, “[W]ith respect to
plaintiff’s claim for fraud in the inducement based upon the misrepresentation of City
[Concrete]’s license status,” the amended complaint “sufficiently allege[d] a cause of action.”
Id. at 356.
“Under settled principles, a litigant cannot ‘approbate and reprobate by taking successive
positions in the course of litigation that are either inconsistent with each other or mutually
contradictory.’” Commonwealth v. Holman, 303 Va. 62, 71 (2024) (quoting Rowe v.
Commonwealth, 277 Va. 495, 502 (2009)). “The prohibition against approbation and
reprobation forces a litigant to elect a particular position, and confines a litigant to the position
that []he first adopted.” Id. (quoting Matthews v. Matthews, 277 Va. 522, 528 (2009)). Having
pleaded the theory that City Concrete’s failure to maintain a properly appointed designated - 14 - authority constituted contracting without a license, and having acquiesced in the trial court’s
embrace of that theory to his benefit, Benkirane cannot now object to the court’s refusal of
proposed Instruction 10 on the ground that City Concrete is licensed and therefore barred from
seeking shelter in the Code § 54.1-1115(C)’s safe harbor.
In the alternative, the trial court was correct that proposed Instruction 10 misstated the
law by failing to account for the presence of the safe harbor. Giving Code § 54.1-1115(C) its
plain reading, “unlicensed contractor” and “without a valid . . . contractor’s license” are used
synonymously. This means that, to the extent City Concrete technically possessed a license but
the license was invalid due to its failure to have a proper designated employee, § 54.1-1115(C)’s
carve-outs were still applicable. Further, City Concrete adduced evidence showing both that it
substantially performed under the agreement before ceasing work due to nonpayment and that it
was not actually aware of the designated employee requirement until it “received the DPOR
complaint”—i.e., the applicability of the safe harbor was supported by the evidence.
Benkirane’s proposed instruction, by contrast, would have categorically barred City Concrete
from recovery under the contract had the jury found that City Concrete simply failed to comply
with § 54.1-1106(E). But, given the evidence supporting the applicability of § 54.1-1115(C)’s
exceptions, this categorical exclusion of the safe harbor was a misstatement of the law of the
case. Accordingly, the trial court did not abuse its discretion by refusing proposed Instruction
10.5
III. The trial court did not err in refusing Benkirane’s proposed Instruction No. 15.
Finally, Benkirane asserts that “[t]he trial court erred when it refused Plaintiff’s Breach of
Contract Instruction #15 where it was a correct statement of the law and supported by the
5 We further note that Benkirane chose not to proffer an alternative to proposed Instruction 10, which could have instructed on illegality while accurately reflecting the carve- outs of Code § 54.1-1115(C). - 15 - evidence.” The instruction read, “If you find that City Concrete furnished defective materials or
workmanship, you shall find that City Concrete breach [sic] its contract with Benkirane.” The
trial court reasoned that Benkirane’s proposed instruction was “subsumed in the breach of
contract instruction that the jury [wa]s already” receiving and that it was not necessary for the
instructions to “identify every aspect of the possible breach of contract.” We agree with the trial
court.
The trial court’s breach instruction read, “A material breach of contract occurs if a party
fails to do something which he is bound to do according to the contract which is so important and
central to the contract that the failure defeats an essential purpose of the contract”—a correct
statement of Virginia law. Cf. Horton v. Horton, 254 Va. 111, 115 (1997). Benkirane argues
that the court nonetheless committed reversible error because his refused instruction was
supported by Clevert v. Jeff W. Soden, Inc., 241 Va. 108 (1991), where our Supreme Court
observed that “[a] contractor defaults in the performance of his contract if he furnishes defective
materials or workmanship.” Id. at 111. Benkirane is correct that his proposed instruction was an
accurate statement of the principle from Clevert. See id. (equating a builder’s “defective
performance” to “material breach” (emphasis omitted)). But where “the record discloses that
other instructions given by the court adequately covered the substance of [a proposed] instruction
. . . it [i]s not error for the trial judge to refuse it.” Howard v. Commonwealth, 210 Va. 674, 679
(1970). Here, the court instructed the jury to analyze whether City Concrete “fail[ed] to do
something” that it was “bound to do” and that was “central to the contract.” The jury could
certainly have determined from this instruction that any failure to furnish proper materials or
workmanship by City Concrete amounted to breach. Thus, where another instruction
“adequately covered the substance” of the law of material breach, id., we cannot say that the trial
- 16 - court abused its discretion in refusing Benkirane’s proposed instruction. We accordingly affirm
the court’s judgment.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
- 17 - Raphael, J., concurring.
I join the Court’s opinion in full but write separately to make clear that we do not reach
two important questions under the Virginia Consumer Protection Act that have not been argued
here: (1) whether (and to what extent) does the VCPA enable a consumer to use a legal entity to
engage in a consumer transaction; and (2) whether a VCPA suit must be brought in the name of
the legal entity when the consumer uses that entity to buy consumer goods or services.
Saad Benkirane brought this VCPA suit in his own name against City Concrete Corp.
The underlying contract was between City Concrete and “GW Real Estate Enterprise.”
Benkirane signed the contract as the “Authorized Rep” of GW Real Estate Enterprise. The trial
court sustained City Concrete’s demurrer, finding that the contract was a “commercial
transaction,” not a “consumer transaction” governed by the VCPA. Benkirane v. City Concrete
Corp., 112 Va. Cir. 351, 351-52 (Fairfax 2023).
Benkirane argues that it does not matter that the contract, by all outward appearances, is a
commercial transaction between GW Real Estate Enterprise and City Concrete. But see CSE,
Inc. v. Kibby Welding, LLC, 77 Va. App. 795, 806 (2023) (“[T]he objective reliability of a
contract . . . depends on the ‘external manifestation’ of the parties’ bargained-for exchange, not
their “undisclosed mental state.” (quoting Restatement (Second) of Contracts § 71 cmt. b
(1981))). Benkirane reasons that the VCPA defines “consumer transaction” to mean the sale of
goods or services “to be used primarily for personal, family or household purposes.” Benkirane
Br. 22 (quoting Code § 59.1-198). He argues that so long as the contract was for goods or
services that were eventually to be used for personal, family, or household purposes, the
transaction falls within the plain language of the statute. Id. at 22-23.
The Court properly rejects that argument. Accepting it would expand the coverage of the
VCPA to include every business-to-business transaction within the long supply chain for any
- 18 - goods ultimately “to be used” by a consumer.6 That construction would flout the stated intent of
the VCPA to govern transactions “between suppliers and the consuming public.” Code
§ 59.1-197.
Does that mean that the VCPA provides no protection to a natural person who employs a
legal entity to engage in a consumer transaction? Suppose that a married couple transfers title in
their personal residence to a revocable trust, as some couples do for estate-planning purposes.
Suppose further that the couple, through the trust, buys a washing machine to use in their home.
Is that now a commercial transaction, not a consumer transaction?
The VCPA arguably entitles a natural person to the benefits of the VCPA when employing
a legal entity to purchase consumer goods or services. The VCPA defines “person” as “any
natural person, corporation, trust, partnership, association and any other legal entity.” Code
§ 59.1-198. The VCPA also creates a private right of action to enforce the VCPA for “[a]ny
person who suffers loss as the result of a violation of” the VCPA. Code § 59.1-204. Yet it is
uncertain how the seller can determine that the transaction is for a consumer’s “personal, family
or household purposes,” Code § 59.1-198, and thereby subject to the VCPA, when the contract is
structured as a business-to-business transaction between legal entities.7
6 Contra Alexander v. Se. Wholesale Corp., 978 F. Supp. 2d 615, 621-22 (E.D. Va. 2013) (holding that VCPA plaintiff could sue wholesale supplier of automobile ultimately purchased by plaintiff). 7 As commentators have observed, whether a State’s consumer protection laws can be invoked by a legal entity depends on the statutory terms, which may vary from one State to another. See generally Michael Flynn & Karen Slater, All We Are Saying Is Give Business a Chance: The Application of State UDAP Statutes to Business-to-Business Transactions, 15 Loy. Consumer L. Rev. 81 (2003); Edward X. Clinton, Jr., Do Businesses Have Standing to Sue Under State Consumer Fraud Statutes?, 20 S. Ill. U. L.J. 385 (1996). - 19 - Another question is who the plaintiff should be in such a VCPA suit. If a natural person
uses a legal entity to contract for consumer goods or services, must the VCPA suit be brought in
the entity’s name? Or can the natural person file suit?
These are questions that other courts have touched on but that have not yet been
answered by Virginia’s appellate courts.8 We cannot answer those questions today, however,
because they were neither raised below nor argued here.9 See Rules 5A:18; 5A:20(c). Thus, I
join the Court’s opinion with the understanding that these important issues await future
resolution.
8 See, e.g., In re Zetia (Ezetimibe) Antitrust Litig., 400 F. Supp. 3d 418, 439 (E.D. Va. 2019) (finding that VCPA’s application was not defeated by the fact that the consumer goods were paid for by a third-party corporate purchaser); Microsoft Corp. v. #9 Software, Inc., No. 4:05cv106, 2005 U.S. Dist. LEXIS 36710, at *11 (E.D. Va. Dec. 15, 2005) (“Although a corporation may bring suit under the VCPA, it is clear that the corporation must be engaged in a consumer transaction.”); Wilkins v. Peninsula Motor Cars, Inc., 59 Va. Cir. 329, 334 (Newport News 2002) (holding that the VCPA claim was not defeated by the fact that the car was titled in a corporation; “[w]hether the vehicle was to be used for the plaintiff’s personal or commercial use, was a question of fact to be decided by jury”). 9 Benkirane has not argued, either in the trial court or here, that the person definition in Code § 59.1-198 entitled him to use the corporate form to purchase consumer goods and services from City Concrete. - 20 -