Ballagh v. Fauber Enters., Inc., 773 S.E.2d 366

In May 2010, Debra Ballagh purchased real property from Fauber Enterprises; the house basement flooded repeatedly when it rained.
Ballagh alleged Fauber had prior basement leaks, obtained estimates to waterproof but did not complete repairs, and affirmatively concealed defects before sale.
Ballagh sued (March 2012) including claims under the Virginia Consumer Protection Act (VCPA), alleging misrepresentations and deceptive practices (Code § 59.1-200(A)(6) and (A)(14)).
At trial, parties disputed the applicable burden of proof for VCPA claims: Ballagh sought preponderance of the evidence; defendants urged clear and convincing proof (arguing parity with common-law fraud).
The circuit court instructed the jury to apply the clear-and-convincing standard, the jury returned a defense verdict, and the court denied Ballagh’s motion for new trial. Ballagh appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
What standard of proof applies to a VCPA claim?	Ballagh: VCPA is a statutory cause of action distinct from common-law fraud; the default civil standard (preponderance) applies and remedial statutes should be liberally construed.	Fauber: VCPA uses fraud-type language; fraud requires clear and convincing proof; statutes with treble or extraordinary remedies imply a higher standard.	Court: Preponderance of the evidence applies to VCPA claims; reversed and remanded.

Mulford v. Walnut Hill Farm Group, LLC, 282 Va. 98 (burden-of-proof questions reviewed de novo)
Owens v. DRS Auto. Fantomworks, Inc., 288 Va. 489 (VCPA creates a statutory cause distinct from common-law fraud; legislative intent to expand consumer remedies)
Wilkins v. Peninsula Motor Cars, 266 Va. 558 (elements of VCPA differ from common-law fraud; plaintiff may plead both causes)
Wyatt v. McDermott, 283 Va. 685 (the ordinary civil burden is preponderance of the evidence)
E.I. du Pont de Nemours & Co. v. Eggleston, 264 Va. 13 (remedial legislation construed liberally in favor of injured party)