Craig Sanford v. James Smith, Jr. , 490 F. App'x 570 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2394
CRAIG SANFORD; MARY JO SANFORD,
Plaintiffs - Appellees,
v.
JAMES F. SMITH, JR., a/k/a Jamie Smith,
Defendant – Appellant,
and
SCG INTERNATIONAL, LLC,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:10-cv-00940-GBL-IDD)
Submitted: November 6, 2012 Decided: November 27, 2012
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James F. Smith, Jr., Appellant Pro Se. John Chapman Petersen,
Jason Frank Zellman, SUROVELL ISAACS PETERSEN & LEVY, PLC,
Fairfax, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James F. Smith, Jr. appeals the district court’s order
entering final judgment following a jury’s conclusion that he
defrauded Craig and Mary Jo Sanford of $9.5 million. We have
reviewed the record and affirm the district court’s judgment.
Proceeding pro se on appeal, Smith restates the
arguments made by his lawyers in the district court, raising a
single issue: namely, whether the district court, in denying his
renewed motion for judgment as a matter of law under Fed. R.
Civ. P. 50(b), improperly permitted the Sanfords to prevail at
trial on a theory of fraud that was different than the theory of
fraud that they had alleged in their amended complaint. We
review the denial of a Rule 50(b) motion de novo, viewing the
evidence in the light most favorable to the prevailing party and
affirming the denial of the motion unless the jury lacked a
legally sufficient evidentiary basis for its verdict. Gregg v.
Ham, 678 F.3d 333, 341 (4th Cir. 2012).
Our review of the record convinces us that Smith’s
assertions are without merit for the simple reason that the
evidence at trial proved a theory of fraud that was adequately
pled in the Sanfords’ amended complaint. Because the Sanfords’
fraud claims were controlled by Virginia law, they were required
to plead — and, at trial, to establish by clear and convincing
evidence — that (1) Smith intentionally and knowingly (2) made a
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false representation (3) of material fact (4) with the intent to
mislead them, and that (5) they relied on the misrepresentation,
(6) suffering damage as a result. Bank of Montreal v. Signet
Bank, 193 F.3d 818, 826–27 (4th Cir. 1999); Cohn v. Knowledge
Connections, Inc., 585 S.E.2d 578, 581 (Va. 2003). Federal Rule
of Civil Procedure 9(b) requires plaintiffs alleging fraud to
plead “with particularity the circumstances constituting fraud.”
Fed. R. Civ. P. 9(b); see also Harrison v. Westinghouse Savannah
River Co., 176 F.3d 776, 784 (4th Cir. 1999).
In cases in which a fraud count incorporates by
reference all of the prior allegations in a complaint, we
examine the entire complaint to determine if the pleading
requirements of Rule 9(b) are satisfied. Adkins v. Crown Auto,
Inc., 488 F.3d 225, 232 (4th Cir. 2007). It is apparent on any
fair reading of the amended complaint as a whole that it alleged
— with the particularity requisite under Rule 9(b) — that Smith
made multiple promises to the Sanfords of repayment and of
safeguarding their funds that he never intended to keep. See
Colonial Ford Truck Sales, Inc. v. Schneider, 325 S.E.2d 91, 94
(Va. 1985) (in Virginia, where a party “makes [a] promise,
intending not to perform, his promise is a misrepresentation of
present fact, and if made to induce the promisee to act to his
detriment, is actionable as an actual fraud.”) (emphasis
omitted); see also T.G. Slater & Son, Inc. v. Donald P. &
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Patricia A. Brennan LLC, 385 F.3d 836, 844 (4th Cir. 2004)
(same).
In our assessment, the Sanfords presented more than
enough evidence at trial to support the jury’s determination
that, at the time Smith promised to keep the Sanfords’ funds
safe and to repay them, he intended not to keep his promise.
The evidence adduced at trial was therefore sufficient to prove
the theory of fraud that was pled in the Sanfords’ amended
complaint.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the Court and argument would not aid the decisional
process.
AFFIRMED
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