CHARLES E. POSTON JUDGE
CHARLES E. POSTON JUDGE Ethan G. Ostroff, Esquire
Troutman Sanders LLP
150 West Main Street, Suite 1600
Norfolk, VA 23510 Clay Macon, Esquire
Glasser & Macon, P.C.
1121 S. Military Hwy.
Chesapeake, VA 23320 Philip A. Liebman, Esquire
Suite 110, Laskin Towers
1917 Laskin Road
Virginia Beach, VA 23454 Allen W. Beasley, Esquire
Breeden, Salb, Beasley & DuVall, PLC
555 East Main Street, Suite 1210
Norfolk, VA 23510 Alan B. Rashkind, Esquire
Furniss, Davis, Rashkind & Saunders, PC
6160 Kempsville Circle, Suite 341B
Norfolk, VA 23451 Jeanne S. Lauer, Esquire
Inman & Strickler, PLC
575 Lynnhaven Parkway
Virginia Beach, VA 23452 Dear Counsel:
This matter is before the Court on demurrer of Defendants Cornerstone Investment Funding ("CIF") and Cornerstone Real Estate Acquisitions and Management, LLC ("CREAM"). CIF demurs to Count I of the Complaint ("Loan/Renovations Fraud") on several grounds, but as the Court sustains the demurrer on its first ground - that Plaintiffs fail to allege the requisite elements of fraud - the Court need not consider the other grounds. CREAM's demurrer to Count II of the Complaint ("Fraud - Deed Transfer") is sustained for the same reason.
The requisite elements of fraud include "(1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to him." Van Deusen v. Snead, 247 Va. 324, 327 (Va. 1994) (quoting Thompson v. Bacon, 245 Va. 107, 111, 425 S.E.2d 512, 514 (1993)). Of these six elements, none are suggested by the facts alleged in Counts I and II. The only implication of any false representation comes from paragraphs 16 and 17 of the Complaint where Plaintiff alleges that a statement of disbursements supplied by GIF, after the alleged fraud had occurred, misrepresent how Plaintiff's escrowed funds were disbursed.
Even if false representations of material fact by CIF or CREAM could be extrapolated from the Complaint's allegations, there are absolutely no indicia or implications of detrimental reliance by the Plaintiff.
Because Plaintiff has failed to plead all of the elements of fraud in Counts I and II, CIF's and CREAM's demurrers are sustained, with leave for Plaintiff to amend his Complaint
Mr. Ostroff is requested to arrange for the endorsement of the attached Order and to present it for entry not later than June 1, 2010.
Sincerely,
/s/
Charles E. Poston
Judge CEP/GHK/nm IN THE CIRCUIT COURT OF THE CITY OF NORFOLK FOURTH JUDICIAL CIRCUIT TIMOTHY MULLEN, Plaintiff, v. CORNERSTAONE INVESTMENT FUNDING, LLC, et al., Defendants. File Number CL09-4805 ORDER SUSTAINING DEMURRER
For the reasons stated in the Court's letter opinion dated May 19, 2010, the Defendants' demurrer to the Counts 1 and II of the Complaint is sustained. The Plaintiff is granted leave to file an amended complaint within ten days of the entry of this order.
Let the Clerk forward certified copies of this order to counsel of record and to any unrepresented party.
IT IS SO ORDERED.
ENTERED THIS ___ DAY OF MAY, 2010
/s/_________
Circuit Judge