Construction Law Insights

Wood v. Commonwealth, 2022 Va. App. LEXIS 204, 2022 WL 2026981 (Va. App. Ct. Jun. 7, 2022)

On January 15, 2020, Megan Smith (“Smith”) and Lawrence Wood, Jr. (“Wood”) discussed a renovation project at Smith’s home and wrote a contract that called for Smith to pay Wood $16,500.00 as a down payment. Wood said he was a contractor, so Smith thought he had a contractor’s license. Smith signed the contract and paid Wood $16,500.00 by check on March 3, 2020, which Wood cashed. Wood dug postholes, filled the postholes with cement, and demolished the landing and steps to Smith’s home, but did no other work. When Smith learned of Wood’s reputation, Smith asked Wood to return her money. Wood said the money was gone and claimed it was used to purchase materials for the project. After being unable to find any materials Wood claimed were delivered, Smith repeatedly asked Wood for receipts for the materials. Wood showed Smith what he claimed to be a list of purchased items, but it was merely a price quotation for materials, not a paid receipt. At Smith’s insistence, Wood produced the building permit application, which he had only partially completed. Smith later learned that Tony Dyer was listed as the licensed contractor on her job’s building permit. On September 2, 2020, Smith demanded the return of her money and Wood agreed. On September 5, 2020, Wood gave Smith a $16,500.00 check, which was returned unpaid because the bank account upon which it had been drawn had been closed. After contacting the police, Smith sent Wood a written demand for her money by registered mail. Wood never repaid Smith. The trial court found Wood guilty of construction fraud. Wood appealed arguing that the Commonwealth’s evidence was insufficient to prove that Wood intended to defraud Smith.

The Court affirmed the trial court and held the evidence was sufficient to prove Wood’s guilt of construction fraud. To establish the crime of construction fraud under Virginia Code § 18.2-200.1, the Commonwealth must prove, among other elements, that the defendant possessed fraudulent intent at the time the advance of funds was obtained. The intent to defraud means that the defendant intended to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property. In construction fraud cases, fraudulent intent can be inferred from the conduct and representations of the defendant. Circumstances implying fraudulent intent include a contractor’s false statements, subsequent failure to perform the work, failure to use the advanced funds to purchase supplies or to hire needed labor, efforts to avoid communicating with the homeowner, and refusal to return the advanced funds. Construction fraud can occur despite a contractor beginning to perform on the contract. The relevant question is whether a builder or contractor obtained an advance based upon future work promised with a fraudulent intent not to perform or to perform only partially, not whether the contractor had performed work for which he was paid.

 PLDR Law Mark Burgin 1

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