Hoffman v. Stamper
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In the Circu it Court for B altimore C ity Case No. 98233107/CC7330 IN THE COURT OF APPEALS OF MARYLAND No. 33 September Term, 2004 ______________________________________ ARTHUR J. HOFFMAN, ET AL. v. TOYOME STAMPER, ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: February 4, 2005 In an amended complain t filed in the C ircuit Court for Baltimore City, nine plaintiffs claimed that, through an elaborate flipping scheme , the defend ants had co nspired to defraud them, and did defraud them, into purchasing d ilapidated res idential prop erties in Baltimore City at inflated prices.1 The participants in this alleged co nspiratorial scheme w ere (1) the flippers, Robert Beeman, Suzanne Beeman, and a corporation controlled by the Beemans, A Home of Your Own, Inc. (AHOY O), (2) the lenders, Irwin Mortgage Corporation (then known as Inland Mortgage Corporation) and one of Irwin s loan officers, Joyce Wood, and (3) the appraiser, Arthur Hoffman.2 Each of the nine pla intiffs charg ed all of the d efen dants wi th co nspi racy to defraud, fraud, violations of the State Consumer Protection Act (CPA), and negligent misrepresentation, and Irwin and Wood were charged as well with general negligence. Compensatory and punitive damages were sought by each plaintiff aga inst each de fendant. After disposition by the court of various motions, a jury found e ach of the defenda nts liable to each of the plaintiffs for fraud, conspiracy to defraud, and violations of the CPA. The jury awarded each plaintiff, as against all of the defendants, differing amounts of econom ic damages and $145,000 for non-economic (emotional) damages, for an aggregate total of $1,434,020.3 In addition, it awarded each plaintiff $200,000 in punitive damages 1 The word flipping was not used at trial, but it has been used as a descriptive term by the pa rties on app eal. 2 An additional lender defendant, Homeside Lending, Inc., was let out on summa ry judgment. 3 The record shows two other amounts as the aggregate judgment, but the parties agree that the correct amount, based on the jury s verdicts, is $1,434,020. against the Beemans a nd AHO YO. Throu gh a partial judgment in their fa vor, the court had previously withdrawn from the jury the punitive damage claims against Irwin, Wood, and Hoffman. Their liability, joint and several, was only for the comp ensatory damages. In posttrial proceedings, the court awarded attorneys fees and expenses under the CPA a gainst all defenda nts in the aggregate amount of $195,591, subject to a dollar-for-dollar credit for attorneys fees and expenses received by plaintiffs counsel under their contingent fee agreeme nt. Everyone except Robert Beeman and AHOYO appealed, although Suzanne Beeman later withdrew her appeal. The Court of Special Appeals affirmed the judgments for compensatory damages, but, after con cluding that there was suff icient eviden ce to show that Irwin, Wood, and Hoffman participated in the fraudulent scheme and made misrepresentations of their own with actual knowledge of the fraud and the falsity of those representatio ns, it reversed the partial judgment in their favor with respect to punitive damages and rem anded for fur ther pro ceedin gs on th ose claim s. See Hoffman v. Stamper, 155 Md. A pp. 247, 843 A .2d 153 (2004). On the premise that an award of attorneys fees under the CPA must take into account all of the circumstances, includ ing the amount of recovery, and because, on remand, there was the prospect of a punitive damage award being entered against Irwin, Wood, and Hoffman, the intermediate appellate court also vacated the award of attorneys fees and remanded that as well for reconsideration . As guidance f or the trial court, the Court of -2- Special Appeals observed that an award of attorneys fees under the CPA would not duplicate fees paid by the plaintiffs under a contingent fee agreement but would simply reimbu rse them for all o r part of those f ees. We granted petitions for certiorari filed by Irwin, Wood, and Hoffman to consider the following questions: (1) Was there sufficient evidence of culpability on Hoffman s part to sustain the verdicts for conspiracy, fraud, and violation of the CPA; (2) In affirming the judgment for compensatory damages, did the Court of Special Appea ls err in holding that, in an action based on fraud, non-economic damages may be awa rded in the abs ence of an y physi cal in jury; (3) Did the trial court err in instructing the jury that damages in an action based on fraud need be proved only by a preponderance of the evidence and, if so, did the Court of Special Appea ls err in holding that Irwin and Wood waived their objection to such an instruction; (4) Did the Court of Special Appeals err in reversing the judgment for Irwin, Wood, and Hoffman as to punitive damage s and, if not, d id it err in remanding for only a partial new trial on punitive damages rather than an entire new trial on all issues; and (5) Did the Court of Special Appeals err in vacating the award of attorneys fees and remanding that issue for further reconsideration? We shall answer some of these questions in the affirmative and some in the negative -3- and shall therefore affirm in part and reverse in part the judgment of the Court of Special Appeals. For convenience, we shall refer to the Beemans and AHOYO collectively as Beem an, unless the context requires otherwise. Robert Beeman was the principa l culprit. Irwin s culpability is a vicarious one, resting on the conduct of its employee, Wood. BACKGROUND The basis of the plaintiffs case, in a nutshell, was that Beeman (1) bought dilapidated properties in Baltimore City at low prices, (2) then searched for unsophisticated, low-income buyers with poor credit histories, (3) promised them that he could sell them a renovated home for a do wn pa yment of only $50 0, (4) got those buyers to sign contracts of sale at significantly inflated prices upon a promise to make extensive repairs, many of which were never made, (5) arranged for the buyers to finance the purchases with 100% FHA loans obtained through Wood, and (6) obtained those loans for the buyers in part by conspiring with Wo od to have Hoff man prepare erroneous appraisals showing the value of the homes to be at or above the grossly inflated contract price and in part by engaging in practices that clearly violated Department of Housing and Urban Development (HUD) regulations and requireme nts regarding the FHA program in order to consummate the transactions. All nine plaintiffs two of whom (B rower and Spencer) purchased one house together testified that, after taking possession, they experienced major problems with their homes, some of which were uninhabitable. Six of the nine eventually lost their homes to foreclosure. -4- The transactions at issue in this case were as follows:4 Property Buyer Beeman Purchase Price Sale Price to Buyer 17 N. K resson St. Jerry McFadden $14,500 (4/23/97) $52,000 (5/9/97) 612 E. 41 St. Carl Haley $20,000 (6/25/97) $57,200 (5/28/97) 610 N. Belno rd Ave. Gertrude Green $12,500 (6/18/97) $44,000 (7/30/97) 5601 Force Rd. Denise Brow er & Forrest Spencer $24,000 (8/7/97) $65,900 (7/21/97) 406 Old ham St. Francine Henderson $17,550 (3/27/97) $58,000 (2/17/97) $65,000 (9/9/97) 3132 Piedmont Ave. Eva Elder $29,551 (9/5/97) $51,000 (8/12/97) 6521 L enhert St. Toyome Stamper $41,790 (9/5/97) $87,250 (8/14/97) 1127 C arroll St. Inez Cowa rd $7,550 (9/29/97) $58,000 (12/19/97) The trial lasted three weeks, during which a great deal of documentary and testimonial evidence, some of it conflicting, was presented. We must view that evidence in a light most 4 There are some discrepancies and uncertainties with respect to the dates of Beeman s purchases and sales. In the record is an exhibit stipulated to by the parties that purports to s how tho se dates, but th e source o f that data is n ot clear. It seem s to indicate when Beeman and his buyers took title to the properties, but there is other evidence that puts some of the dates stated for Beeman s purchases in question. The appropriate dates, for our pu rposes, are th e dates that B eeman to ok title and the n entered in to contracts to sell the properties. The dates noted above for the sales to the plaintiffs are the dates on the contracts of sale. Closing of those sales took place two months or so later. With one or two exceptions, the d ates upon which Beeman ac tually took title to the properties are not in the rec ord. We s hall use the d ates stated in th e exhibit ev en though by doing so it would appear that Beeman sold the properties before he had title to them. The discrepancies are not important with respect to the issues before us. -5- favorable to the part(ies) who prevailed on the issues to w hich it relates an d shall recite the fact s acc ordingly. Beeman began his business of buying distressed houses in Baltimore City at low prices and selling them to unsophisticated buyers at inflated prices in 1996. Initially, he arranged financing for the buyers through conventional mortgage loans, but those loans financed only 60% to 80% of the purchase price. At some point in 1997, he met Wood, who was a loan officer for Irwin and dealt in FHA insured loans. Wood received a commission on loans generated by her and looked upon Beeman (and others in his line of business) as customers and a source of commission income for her. She educated Beeman about the FHA program. Mortgage loans approved under that program are insured by HUD. If a loan goes into default, the lender, or current holder of the mortgage, forecloses, buys the property at the foreclosure sale for the b alance due on the loa n, transfers th e property to H UD, an d is reimbursed by HUD for 100% of the unpaid balance of the loan. Beca use of the g reatly reduced risk of loss under that arrangement, lenders are willing to lend up to 100% of the appraise d value o f the prop erty. Most of Beem an s prosp ective buyers h ad both poor cred it and insuff icient fund s to meet their share of the closing c osts. At their initia l meeting, W ood adv ised Beem an that, under the HUD program, a seller could not contribute more than six percent of the loan amount (which, with a 100% loan, was equivalent to the purchase price), and that if the seller contributed more, the purchase price would be reduced accordingly. Included in the six -6- percent cap were a seller s contribu tions to the buyer s share of clo sing costs an d payments made to clear up the buyer s credit problems.5 To maximize his profit, of course, Beeman had an ince ntive no t to have any redu ction of the con tract pric e. Wood explained that it was possible for closing costs to be donated by a friend or relative of the buyer but that any such gift must be verified by (1) a gift letter from the donor, and (2) evidence that the fun ds were drawn from th e dono r s bank accou nt. Wood offered a range of services to Beeman to permit him to pursue his business. First, presumably aware that Bee man s bu yers would b e unable, o n their ow n, to pay their share of closing c osts, she gav e him a sup ply of blank g ift letters. She also agreed to generate on Irwin s computer, for each buyer ref erred b y Beem an, a g ood fa ith estim ate. The good faith estimate, according to Wood, was based on the contract price and the estimated share of closing costs to be paid by the buyer and determined how much cash the buyer would n eed to close. Tha t would allo w Beem an to determ ine how much of a gift would be required. In fact, that estimate had a greater significance. In most, if not all, of the transactions, the good faith estimate prepared by Wood became the purchase price for the house. The purchase price thus was determined by the maxim um loan a mount, not the other 5 This advice was apparently based on HUD Mortgagee Letter 87-35, issued October 22, 1987, amending Mortgagee Letter 86-15 (August 8, 1986) to provide that seller buydowns in excess of six percent of the mortgage amount must be applied as a dollar-for-dollar reduction of the sales price in mortgage credit process. Seller buydowns are payments for discount points, any type of interest payments, or seller payment of closing costs no rmally (un der loca l marke t practice ) paid b y the buyer. -7- way around. It was not negotiated between Beeman and the buyers but was inserted into the contract by Beeman after the good faith estimate was calculated by Wood. Each of the nine plaintiffs called Beeman in response to one of his ads offering a rehabbed home fo r only $500 down or after learning of such an offer by word-of-mouth. Beeman met with the plaintiff, ascertained the area of the City w here the pla intiff wan ted to live, got some basic credit information regarding the plaintiff, and showed the plaintiff the houses that he had in that part of the City, without clearly disclosing that the properties were his. Most of the plaintiffs thou ght that Beeman was an agent o f some kind or a lender and did not realize that he was the owne r/seller. Each house was still in a dilapidated condition, but Beeman promised that the house would be fixed by his own contractor, that he would have it inspected, and that he would assist in obtaining FHA financing for the plaintiff. When the plaintiff indicated interest, Beeman, either that day or shortly thereafter, drove him/her to Irwin s office in Co lumbia, where they met with Wood and made application for an FH A loan . Some of the plaintiffs testified that they signed a contract of sale with Beeman prior to meeting with Wood based on a price quoted or estimated by Beeman, that the purchase price was nonetheless left blank in the contract, and that, when or after meeting with Wood, a price had been inserted in the contract that was higher than was first quoted. Wood confirmed that Beeman and the buyer wou ld bring contracts of sale w hen they met with her, that the price w as sometim es missing f rom the co ntract, but that it w as inserted before the -8- end of the meeting. Plaintiff McFadden said that Beeman had estimated the price of the house on Kresson Street at $50,000, but that, at the meeting with Wood the price had been filled in at $52,000. Plaintiff Haley said that he thought the price of the house on 41st Street was between $35,000 and $40,000, but that, when presented w ith the contract at Wood s office, the price was $57,200. Plaintiff Green was told by Beeman that the price for the house on Belnord Avenue would be $38,000, but that the contract handed to her by Wood showed the price as $44,000. When Beeman took Plaintiff Henderson to see the house on Oldham Street, he told her the purchase price would be $58,000; at the meeting with Wood, the price was changed to $65,000 . When h e took Plain tiff Cow ard to see th e house on Carroll Street, he told her that the price was $40,000; at the meeting with Wood, she was handed a document showing the price to be $58,000. As non e of the pla intiffs had su fficient fun ds to pay their share of the closing costs, Beeman paid those costs through a sham transaction. Beeman asked each of them to find a friend or relative with a bank acc ount wh o would be willing to act as a donor. Once that was done, Beeman filled out one of the gift letters given to him by Wood and had the buyer and the donor sign the letter. The letter was an attestation by the donor that he/she was making a gift of the amount specified to the buyer, to be applied to the purchase of the property described, and that no repayment was expected. Beeman then arrang ed to meet the dono r, sometime s with the buyer, at the donor s bank or credit union. Beeman arrived with cash in an amount equal to the gift. He gave the cash to the donor, who deposited -9- it into his/her account. The donor then obtained a certified check for that amou nt payable to the buyer and gave the check to Beeman. That check was then used to pay the buyer s share of transactional costs. The d onor made n o contribution to the costs; they were contributed entirely by Beeman. 6 Wood was aware that a gift would be required in each of the eight cases now before us. Although all of the plaintiffs knew that Beeman was providing the funds and that the gift letters were not accurate, Beeman explained, when asked, that the gift letter procedure was necessary to p rovide the c losing costs a nd was a standard an d legitimate procedu re in buying a house. The plaintiffs testified that they did not know that the process used by Beeman was illegal and that, had they known it was illegal, they would not have participated in it. The third piece of the scheme was the appraisal. Hoffman, a licensed appraiser, had once worked for HUD and was familiar with the reg ulations and requireme nts pertaining to FHA loans. He also had worked for Irwin as an in-house appraiser. After leaving that employme nt, he continued to do freelance appraisal work for Irwin and was paid $300 for each appraisal. Ind eed, he said that, after leavin g Irwin s em ploy, 99% o f his income still came from w ork he did for Irwin. W e shall recite m ore of the e vidence against Hoffman 6 The amounts contributed by Beeman through these phony gift letter transactions were as follows: (1) for McFadden, $3,000; (2) for Haley, $6,000; (3) for Green, $2,600; (4) for Brower and Spencer, $2,850; (5) for Henderson, $3,100; (6) for Elder, $2,200; (7) for Stamper, $4,800; (8) for Coward, $3,000. -10- shor tly. It will suffice here to note that there was evidence showing that (1) Hoffman was aware of a HUD requirement that, if an appraisal showed the value of the prop erty to be less than the contract price, the buyer had to be informed and that the buyer then ha d an abso lute right to cancel the contract, in Hof fman s words that would kill the deal , (2) most of the appraisals he did in these cases con tained adm itted errors of o ne kind or another, eithe r with respect to the appraised property itself or regarding the properties he used a s compa rable sales, (3) in most cases, he used inappropriate sales as comp arable properties in different kinds of neighborhoods or that were distant from the subject property that sold for higher prices and ignored close r and more similar prop erties that had sold for much less, (4) in each case, he appraised the dilapidated property at or above the contract price w ithout regard to the much lower price paid by Beeman just months before, (5) although he justified the difference between Beema n s purcha se price and his much higher app raisals on the basis that substantial repairs wo uld be ma de to the pro perty, he did no t make reason able effo rts to assure that those repairs had, in fact, been made and many of them were not, in fact, made, (6) he was aware of a HUD requirement that an appraiser keep the supporting data for appraisals made w ith respect to FHA loans for a period of five years, and (7) in knowing and deliberate violation of that requirem ent, he destroyed those records sho rtly after Beeman s activity became public and investigations into it commenced. Because in each case the appraisal showed the value as equal to or greater than the inflated contract price, the buyer lost the option to cancel the contract. -11- With this somewhat general background, we turn to the issues before us. DISCUSSION A. Hoffman s Culpability Pursuant to Maryland Rule 2-519, Hoffman moved for judgment at the end of the case, and, when that motion was denied and the verdicts against him were rendered, he moved for judgment NOV pursuant to Rule 2-532. That motion, too, was denied. He makes two complaints about the denial of those motions: (1) the trial court and the Court of Special Appea ls applied the wrong evidentiary standard in resolving the motions addressing the conspiracy and fraud claims; and (2) because, under the correct standard, the evidence was legally insufficient to establish conspiracy, fraud, or violations of the CPA on his part, those motions should have been granted. (1) Standard of Proof Hoffman contends that findings of conspiracy and fraud require proof by clear and convincing evidence and that, when reviewing the denial of the motions for judgment, the Court of Special Appeals looked only to see whether there was any evidence . . . however slight to supp ort the cl aims. Hoffman, supra, 155 Md. App. at 288, 843 A.2d at 178. Th at, he claim s, is not th e prope r standa rd. Hoffman is correct in statin g that fraud must be p roved by cle ar and convincing evidence. VF Corp. v. Wrexham Aviation, 350 Md. 693, 704, 715 A.2d 18 8, 193 (1998). It -12- is not so clear whether that standard applies to the conspiracy count. In Daugh erty v. Kessler, 264 M d. 281, 292 , 286 A.2d 95, 101 (1 972), we held that [i]n a civil case not involving a criminal act, c onspira cy may be s hown by a prep ondera nce of the evid ence. Compare, howe ver, Rent-A-Car Co. v. Fire Ins. Co., 161 Md. 249, 267-68, 156 A. 847, 855 (1931), w hich could be read eith er consisten tly or inconsistently w ith that holding . In this case, it matters n ot. Hoffman s argumen t arises from the statemen t by the Court o f Special A ppeals that, in a civil jury case, if there is any evidence adduced, however slight, from which reasonab le jurors could find in favor of the plaintiff on the claims presented, the trial court should deny the defendant s motion for judgment at the close of the evidence and submit the claims to the jury for decision. Hoffman, supra, 155 Md. App. at 288, 843 A.2d at 178. That is a correct statement, which mirrors w hat this Court has said in many cases. It would, ho wever, be mo re precise if it read, from which re asonable jurors, applying the appropriate standard of proof, could find in favor of the plaintiff on the claims presented . In Darcars v. Borzym, 379 Md. 249, 270, 841 A.2d 82 8, 840 (20 04), we es sentially made that point that, in deciding a motion for judgment, a court must account for and consider the appropriate burden of persuasion in deciding whether to allow the jury to decide an issue. Even though the Court of Special Appeals failed to cite Darcars when d iscussing this p oint, there is no indication that the intermediate appellate court failed to apply the appropriate standard in its review.7 7 The interm ediate appe llate court did cite Darcars in its discussion of punitive (continued...) -13- It understood that fraud needed to be shown by clear and convincing evidence and, indeed, believed th at conspirac y required that h eightened standard o f proof as well. The important thing, in any event, is not how the Court of Special Appeals articulated the standard but whether the appropriate standard was applied by the trial court in deciding the motion , and w e think th at it was . The trial judge filed a memo randum explaining his reasons for denying the motions for judgment NOV filed by Hoffman , Wood, and Irw in. In that memora ndum, he clearly recogniz ed that, althou gh civil con spiracy need b e proved only by a preponderance of the evidence, fraud must be shown by clear and convincing evidence, and there is no ind ication that he ever lost sigh t of that stand ard in finding the evidence sufficient to warrant submission of the fraud count to the jury. Whether the trial court was correct in that conc lusion and , indeed, in its further conclusion that the evidence sufficed to warrant submissio n of the co nspiracy and C PA cou nts, is now be fore us, and we shall examine those conclusions in light of what we said in Darcars. (2) Evidenc e of Culp ability As noted, the basic charge against Hoffman was that, in furtherance of the conspiracy by Beeman and Wood, Hoffman knowingly prepared inflated appraisals that he knew we re necessary in order fo r the transactio ns to take place. E vidence to that end w as presente d with respect to each of the appraisals he prepared. 7 (...continued) damages, so it certainly was aware of that case. -14- (a) McFadden Kresson Street Beeman purchased the property at 17 N. Kresson Street on April 23, 1997 for $14,500. Less than three wee ks later, on or a bout M ay 9, 1997, he sold the property to McFadden for $52,000. When the property was sold to McFadden, it was in the same condition as when B eeman b ought it. On June 5, H offman , knowin g that Bee man had only recently boug ht the prope rty for $14,500 , appraised th e property for $52,000.8 There were a number of deficiencies noted in that report. A glaring, though relatively minor, one was that Hoffm an reported that the prop erty was in a residential zone, when, in fact, it was in a manufacturing zone. The census track number was also incorrect. The more significant errors concerned the condition of the structure and the comparable sales that Hoffman used to establish his estimate of value. Hoffman noted that the property was in poor condition when purchased by Beeman but was in good condition now. That could not have been so, for, on an attached Valuation Condition sheet, he listed 14 repairs that still needed to be made, from replacing rotted wood on the porch floor and ceiling, to repairing chipped paint in various parts of the house, to installing a downspout and gutter, to patching, pointing, and painting parts of the house, to rep lacing win dows. H e apparen tly assumed that all of them would be made. On July 2, Hoffman certified that those repairs had been completed, but there was evidence that 8 The appraisal report was prepared on June 9 based on an inspection on June 5, and it appraised the property as of June 5. -15- some of them h ad not bee n done. A part from th e listed items, Hof fman state d on his Valuation Condition sheet that there was no evidence of roof leakage or damage. McFadden, when first inspecting th e property w ith Beem an, noted th at repairs nee ded to be m ade to the roof. Although someone Wood thought it was probably Beeman prepared and submitted to Wood a document showing that extensiv e repairs had been ma de, including a new 2 -ply roofing system on entire ro of of p roperty, a month after moving into the house McFadden said that the roof was leaking and that, when it rained, water poured into his laundry room. The plaintiffs expert appraiser described the Kresson Street property as being part of a residential pocket surrounded by industrial use properties and fronting on a heavy truck traffic road. The three properties used by Hoffman as comparable sales 3500 Claremont Avenue, 3613 East Fayette Street, and 3811 Gough Street were all in residential areas quite some distance aw ay. Indeed, the d istances were m isleadingly stated in the appraisa l. Hoffman reported the Claremont Avenue property as five blocks away when, in fact, it was eleven blocks away; the East Fayette Street property was reported as being four blocks away when, in fact, it was ten b lock s aw ay; he declared the Gough Street property to be four blocks away when it was shown to be twelve blocks awa y.9 Evidence w as presented that there w ere 9 Hoffman claimed that his method of measurement was authorized by a HUD handbook provision directing appraisers to [e]nter proximity in straight line distance, like 3 houses or one tenth of a mile W subject. The problem is that he did not state the distance to the comparables in parts of a mile but in terms of blocks. Hoffman regarded twelve blocks as equaling a mile, so if a property was a half mile away by direct measurem ent as the c row flies, h e would regard it as six blocks aw ay even thou gh it might, in fac t, be twenty bloc ks away. In c alculating dis tances in tha t manner, h e made it (continued...) -16- eight more comparable recent sales of properties in the neighborhood overlooked or ignored by Hoffman, and that the predominant value in the area was between $35,000 and $45,000. (b) Haley 612 East 41st Street Beeman purchased the 41 st Street property for $20,000 and, on May 28, 19 97, sold it to Haley for $57,200. It is not clear when Beeman bought the property; the exhibit noted shows a date of June 25, but that is subject to question, for it would indicate that Beeman sold the property before he ow ned it. Hoffman appraised the property on July 17, 1997 at $57,500, subject to a $90 ground rent. 10 He reported that the property had been purchased a month ea rlier for $25 ,000± cla iming to be unaware that the price paid was only $20,000. He stated that the house had been recently re-habbed and characterized its condition as good . When H aley took poss ession in August, he found that the sump pump was broken and the basement had flooded, the kitchen windows and the kitchen and bedroom ceilings leaked when it rained, the floorboards under the living room carpet were rotting , the walls behind the paneling were crumbling, and the front porch had extensive dry rot. Hoffman based the infla tion in p rice on h is havin g seen w orkme n, sheet rock, carpeting, paint, and windows in the house when he inspected it. He did not ask for documentation, with respect 9 (...continued) appear that the comparable properties were a lot closer than they actually were. These discrepancies appeared in most of Hoffman s appraisals. 10 Most ground rents in Baltimore City are capitalized at six percent. Thus, had the property not been subject to the $90 ground rent, it would be worth $1,500 more. -17- to this appraisal or any other, that the work had been done. Instead, he made a cursory walkaround, often of just the exterior of the house, prior to closing. Hoffman identified the sales of three properties as comparable, two of which he emphasized because the properties were on ly two blocks away. One, the evidence showed, was larger than h e reported 1,8 30 sf. rather than 1,600 sf. It also had a fireplace and a modern kitchen, w hich the sub ject property did not have. Evidence showed that the second compara ble was in far superior condition than the subject property. Three other lowerprice sales in the area were ignored. (c) Green 610 North Belnord Avenue Beeman purchased the Belnord Avenue property on June 18, 1997 for $12,500 and sold it to Green for $44,000 on July 30, 1997. On August 13, 1997, Hoffman appraised the property for $4 4,000, s ubject to a $180 groun d rent ($ 3,000) . For purposes of selecting compara ble sales, he defined the neighborhood as East Baltimore with no precise bound aries. The first comparable sale he chose was of 3501 East Baltimore Street, which, using his as the cro w flies ap proach, he claimed w as seven b locks aw ay when in f act, it was sixteen blocks away. Another comparable sale was of 3613 East Fayette Street, which Hoffman said was f ive blocks a way whe n, in fact, it was se ventee n block s away. Evidence showed that Beeman was also the person who sold that property, a fact that should have been, but was not, disclosed on the appraisal report. Evide nce also showe d that there were -18- seven closer sales, at much lower prices, that were ignored by Hoffman. (d) Brower/Spencer 5601 Force Road Beeman sold the property at 5601 Force Road to Brower and Spencer on July 21, 1997, for $65,900. He purchased the property for $24,000, but, as with some of the other properties, it is not clear when he actually bought it. The record shows that he purchase d it on August 7, 1997, but that is questionable. On August 26, 1997, Hoffman appraised the property for $65,900 subject to a $96 ground rent ($1,600). Unlike some of his other appraisals, Hoffman did not note that the property had been recently purchased by Beeman, although he did state that it was recently renovated. Hoffman selected three comparable sales, stressing the second one, 5531 Force Road, because it was on the same stre et. That hou se had sold very recently settlem ent was in Augus t, 1997 for $75,000. In deposition testimony that he sought to disavow at trial, Hoffman concede d that, without that sale as a comparable, he could not have justified a $65,900 appraisal of the subject property. What he did not disclose, although he knew, was that the allegedly comparable prope rty had been sold by Beem an. The plaintiffs expert noted that Beeman had purchased that property in August, 1997 for $27,000. He opined that the 5531 Force Road sale was out of line and that Beema n s role as selle r should have been noted. The expert also identified six comparable sales, all within three blocks of the subject prop erty, ignored by Hoffman houses that sold for $36,500, $50,000, $44,500, $55,000, -19- $55,000, and $45,000. (e) Henderson 406 Oldham Street Beeman purchase d 406 O ldham S treet for $17 ,550. The record indic ates that he purchased the property on March 27, 1997, but that is questionable, for, on February 17, 1997, he entered into a contract to sell it to Henderson for $58,000 and was given a $500 deposit at that tim e. Nothing more transpired for several months. Beeman was supposed to be making repairs. In August, 1997, Henderson took possession under a lease calling for $500/mo nth rent. No applica tion for financ ing wa s made until Se ptemb er 9, 1997, when Beeman and Hende rson met w ith Wood . At that mee ting, the price w as increased to $65,000, and a new contract at that price was signed. On September 26, 1997, Hoffman apprais ed the p roperty fo r $65,5 00 sub ject to a $ 90 gro und ren t ($1,50 0). Plaintiffs expert stated that the three comparables used by Hoffman w ere, for a variety of reasons, inappropriate. The subject property was surrounded by industrial uses and was near heavy truck and rail traffic. The comparables were in residential areas and one was only half the age of the sub ject prop erty. The expert noted a number of closer p roperties in the area that had sold for much lower prices. (f) Elder 3132 Piedmont Avenue Beeman purchased 3132 Piedmont Avenu e for $29,551 and, on August 12, 1997, sold -20- it to Elder for $51,000 . It is not clear when Beeman bought the property; the record indicates that he bought it on September 5, 1997. On October 7, 1997, aware that Beeman had purchased the property only a month earlier for about $29,000, Hoffman appraised the property for $53,000, subject to a $180 ground rent ($3,000). He noted that the property had a mo dern ki tchen, although an inspection by the plaintiffs expert revealed that not to be the case. One of the comparables used by Hoffman 3033 Mondawmin Avenue he reported as a center row house when in fact it was an end of group, which made it more valua ble. It also had a new kitchen, for which no adjustment was noted. A second comparable he reported as having only 1,200 sf. when, in fact, it had 1,584 sf.; Hoffman also erred in stating the groun d rent o n that pr operty, thereby overvaluing it by $1,400. He miscalculated the square footage of the third compara ble as we ll, showing it as 1,100 sf . when, in fact, it was 1,292 sf. As in the other cases, plaintiffs expert identified other comparables that Hoffman ignored. (g) Stamper 6521 Lenhert Street Beeman purchased 652 1 Lenhert Street for $41,790 and, on August 14, 1997 , sold it to Stamper for $86 ,250. It is not clear w hen Bee man pur chased the property; in his ap praisal, Hoffman notes that it was bought in September, 1997 be fore it was sold to Stam per. Wood s initial good f aith estimate showed Stamper s share of closing costs to be $4,149. -21- At some po int, Wood discovered that the taxes o n the prop erty were hig her than she first thought, which would increase Stamper s monthly payment. She suggested to Beema n that, if she added an up-front fee of one point, she could reduce the interest rate eno ugh to keep the monthly payment the same. Beeman agreed, so a new good faith estimate of $87,250 was prepared showing the closing costs to be $4,519. On November 14, 1997, Hoffman appraised the property for $87 ,500, subject to a $180 g round rent ($3,000). Hoffman reported that the house sat on a slab and had no crawl space, which the evidence show ed wa s not the case. The existence of a crawl space would have been apparent from just walking around the house. Hoffman said that he did walk around the house but that, beca use it was rain ing that d ay, he walked fast. Hoffman also incorrectly reported that the house had 1,804 sf., when, in fact, it had only 1,505 sf. Two experts regarded that discrepancy, of nearly 20%, as significant; one noted that an appraiser could be suspended by FHA for a discrepancy over 10%. (h) Coward 1127 Carroll Street Beeman purchased 112 7 Carroll Street for $7,550 in September, 1997, and, on December 19, 1997, sold it to Coward for $58,000. On January 26, 1998, Hoffman appraised the proper ty for $58 ,000, subject to a $180 ground rent ($3,000). Hoffman knew that Beeman owned the property and that he was required to report whether it had sold within the past year. Although, had he consulted the land records, he would have learned that Beeman -22- bought the property a few months earlier, he reported last sale unknown. When Hoffman initially could not locate any sales that he regarded as comparable, he called Beeman, who supplied him with s ales of his own properties, som ewh at dis tant f rom the subje ct property. Hoffman used those high-price sales as comparables, without disclosing that Beeman was the seller or that he had purchased those properties a short time before at far lower prices. The plaintiffs expert opined that, when relying on three comparables all controlled by the same seller, that fact should be disclosed. The first comparable used by Hoffman, 1207 West Cr oss Street, he reported so ld in Decembe r, 1997, for $73,900. He did not repo rt that Beem an had pu rchased the property in October, 1997, for $27,000 but instead reported that there w as no othe r sale within the year. The second comparable, 1202 Carroll Street, h e reported as sold in September, 1997, for $54,900 without disclosing that Beeman had purchased it in August, 1997, for $24,000. Instead, he stated that there was no other sale of th at property within the ye ar. Simila rly, with the third compara ble, 1119 W ard Street, H offman reported as sold for $6 4,000 a m onth earlier, without disclosing that Be eman had pu rchased that property fo r $12,700 in Novemb er, 1997. There, too, he stated th at there was no other sale of the property within the year. In place of these suspect sales, the plaintiffs expert found ten lower price com parable sales within the year prior to Hoffman s appraisal. The range of values estimated by th at expert was between $25,000 and $45,000. Hoffman views this eviden ce as establish ing, at wors t, nothing m ore than sim ple -23- negligence, not a conspiratorial agreement to commit fraud, or fraud itself, or a violation of the CPA. Inaccuracies in his appraisals, he says, do not suffice to show a conspiratorial agreement between him and Beeman; n or, in the absence of any evidence that any of the plaintiffs ever saw or relied upon his appraisals, did they es tabli sh ac tual f raud . Finally, Hoffman argues, given the absence of any evidence that he dealt directly with any of the plaintiff s, the CP A simp ly does no t apply. (3) Conspiracy We have defined a civil conspiracy as a combination of two or more persons by an agreement or understanding to accomplish an unlawful act or to use unlawful means to accomplish an act not in itself illega l, with the further requirement that the act or the means employed must result in damages to the plaintiff. Green v. Wa sh. Sub. San. Com m n, 259 Md. 206, 221, 269 A.2d 815, 824 (1970). Although the notion of a tortious conspiracy was derived from the common law crimin al conspirac y and each re quires proo f of an ag reement, the tort p laintiff m ust sho w mo re than ju st an un lawfu l agreem ent. The plaintiff must also prove the commission of an overt act, in furtherance of the agreement, that caused the plaintiff to suff er actua l injury. See Alleco v. Weinberg Foundation, 340 Md. 176, 189-91, 665 A.2d 1038, 1044-45 (1995) and cases cited there. The tort actually lies in the act causing the harm; the agreement to commit that act is not actionable on its own but rather is in the nature of an aggravating factor. That is why this Court, in Alleco, held that civil conspiracy -24- is not a separate tort capable of independently sustaining an award of damages in the absence of other tortious injury to the plaintiff. Alleco, supra, 340 Md. at 189, 665 A.2d at 1044-45 (quoting Alexander v. Evander, 336 M d. 635, 6 45 n.8, 6 50 A.2 d 260, 2 65 n.8 (1994)). There is little doubt here that Beeman, with the assistance of Wood, committed overt acts that were intended to defraud, and did defraud, the nine plaintiffs and that the plaintiffs suffered actual harm from that c onduct. That is not re ally contested by H offman . The only question, as to Hof fman, is w hether the e vidence su fficed to es tablish that he joined and helped to implem ent an agre ement to achieve that result. In that re gard, we p ointed out in Western Md. D airy v. Che nowith, 180 M d. 236, 243 , 23 A.2d 6 60, 664 (1 942) that a conspiracy may be prov ed by circum stantial evidence, for in most cases it would be practically impossible to prove a conspiracy by means of direct evidence alone. We explained: Consp irators do no t voluntarily proclaim their purpo ses; their methods are clandestine . It is sufficient if the proven facts and circumstances, pieced together and considered as a whole, convince the court that the parties were acting together understandingly in order to accomplish the fraudulent scheme. Thus a conspiracy may be established by inference from the nature of the acts complained of, the individual and collective interest of the alleged conspirators, the situation and relation of the parties at the time of the commission of the acts, the motives which produced them, and all the surrounding circumstances preceding and attending the culm ination o f the co mmo n desig n. Id. at 243-44, 23 A.2d at 664. See also Daugherty, supra, 264 Md. at 292, 286 A.2d at 101. -25- Viewing the evidence in that context and in a light most favorable to the plaintiffs, who prevailed a t trial on this issue, w e are conv inced that it sufficed, under even a clear and convincing evidence standard, to permit the jury reasonably to have concluded that Hoffman acted together with Beeman and Wood to accomplish the fraudulent scheme. We are not dealing here with just with some isolated inacc uracies in ind ividual app raisals or with honest differences of opinion between Hoffman and the plaintiffs expert over some fine points of appraisal practice. The evidence clear and convincing showed a pattern in all of the appraisals of: (1) actual knowledge by Hoffman in some cases and the ability to know in others, that Beeman had purchased the properties only months earlier for a fraction of what Hoffman appraised them fo r; (2) an attempt by Hoffman to justify the huge inflation, at least in part, by assuming that major improvements would be made to the properties when, in fact, many of those improvem ents were not made and, had Hoffman made a reasonable effort to investigate that critical assumption, he would h ave know n, or had rea sonable g rounds to s uspect, that they were not made;11 and 11 Hoffman stated that sometimes he would go back and verify whether required repairs had been made, but sometimes he did not do so, believing it to be the underw riter s problem . The prob lem with th at is that, in each case here, h e knew that his appraisal was far in excess of what Beeman had paid for the property only a few months earlier and he justified his appraisal on the premise that the property had been rehabbed that substantial improvements and repairs had been made to it in the meanwhile. He thus knew that if those repairs and improvements were not made, the appraisal would be (continued...) -26- (3) a further attem pt by Hoff man to ju stify t he actual appraisal by positing as compara ble the sale of distant properties that were not at all com parable, in part by including material misstatements as to both the physical characteristics of some of those properties and their actual proximity to the subject properties, and by ignoring recent sales at much lower prices o f prop erties m ore like a nd in gr eater pr oximity to the sub ject prop erties. The end result of this consistent pattern, docume nted in one form or a nother in each of the appraisals, was a see mingly autom atic appraisal, in each case, at or just in excess of whatever the contract price happened to be. Overarching all of this were the facts that Hoffman derived 99% of his income from appraisals done for Irwin, that he knew if the appraisal did not match the contract price, the deal would fall through, thereby depriving Wood of her c omm ission an d Bee man o f his pro fit, that in a t least tw o cases , he actually consulted Beeman with respect to which comparables to use and used the high-price sales recommended by Be ema n even th ough the y were not truly comparable, and that, in direct violation of HUD and ethical requirements applicable to appraisers, he deliberately destroyed all of his n otes on ce Bee man s activities came to public a ttention . From that spoliation alone the jury was entitled to infer that those notes w ould have been detrimental to Hoffm an s defen se, that th ey wou ld not h ave sup ported what h e said fr om the witnes s stand. 11 (...continued) grossly inaccurate. This was not a case of checking to see if a dishwasher was working or a closet had been painted. There was substantial evidence that the very repairs and improvements needed to justify the grossly inflated appraisal were not made and that, had Hoffman made a reasonable investigation, he would have known that they were not made. -27- Some of these de partures, view ed in isolation, might be re garded as simple negligence, as Hoffman argues, but pieced together and co nsidere d as a w hole, they suffice to show tha t Hoffm an was a ware of what B eeman w as doing, that he understood that Beeman s scheme could n ot work unless he produced appraisals at or above the inflated contract price, and that he knowingly participated in that scheme by providing those appraisals. He was dependent on Wood for his livelihood, Wood was dependent on people like Beeman for her livelihood, and Hoffman made it all work. Hoffman argues that th is case is similar to Electronics Store v. Cellco, 127 Md. App. 385, 732 A .2d 980 (1999 ), cert. denied, 356 Md. 495, 740 A.2d 613 (1999), and Cavalier Mob. Homes v. Liberty Homes, 53 M d. App. 379, 4 54 A. 2 d 367 ( 1983) , cert. denied, 295 Md. 736 (1983), in which the Court of Special Appeals held that there was insufficient evidence to support a finding of conspiracy under Maryland antitrust law. The quantum and quality of eviden ce in this case is much greater than that presented in those cases, ho wever, and they are therefore distinguishable. (4) Fraud To prove an action for c ivil fraud based on affirmative misrepresentation, the plaintiff must show that (1) the defendant made a false representation to the plaintiff, (2) the falsity of the representation was either known to the defendant or the represen tation was m ade with reckless indifference to its truth, ( 3) the misrepresentation was made for the purpose of -28- defrauding the plaintiff, (4) the plaintiff relied on the misrepre sentation an d had the rig ht to rely on it, and (5) the plaintiff suffered compensable injury as a result of the misrepresentation. See Nails v. S & R, 334 Md. 398 , 415, 639 A.2d 6 60, 668 (1994); VF Corp ., supra, 350 M d. at 703, 71 5 A.2d a t 193 (199 8); Environmental Trust v. Gaynor, 370 Md. 89, 97, 803 A.2d 512, 516 (2002). 12 Hoffman contends that there was no evidence that any of the plaintiffs actually relied on his appraisals and that, in any event, because of an FHA warning that the purpose of the appraisal was to determine the value of the property for mortgage insurance purposes and that the buyer should independently evaluate the reasonableness of the purchase price, they had no right to rely on his appraisal. The Court of Special Appeals rejected both of those arguments on the premise of indirect reliance that the plaintiffs were aware that if the appraisal was less than the contract price, they would h ave the righ t to cancel the contract and that, when that option was not afforded them because of the inflated appraisal, they relied and had a right to rely on the fact that the prop erty was wo rth what they w ere paying fo r it. That kind of indirect reliance, Hoffman argues, does not suffice. 12 It has long been clear that [f]raud may consist in a suppression of the truth as well as in the assertion of a falsehood. Schnader v. Brooks, 150 Md. 52, 57, 132 A. 381, 383 (1926). We described the elements of an action based on fraudulent concealment of material facts in Green v. H & R Block, 355 Md. 488 , 525, 735 A.2d 1 039, 1059 (199 9): (1) the defendant owed a duty to the plaintiff to disclose a material fact; (2) the defendant failed to disclose that fact; (3) the defendant intended to defraud or deceive the plaintiff; (4) the plaintiff took action in justifiable reliance on the concealment; and (5) the plaintiff suffered damages as a result of the defendant s concealment. See also Levin v. Singer, 227 Md. 47, 64, 175 A.2d 423, 432 (1961) -29- Hoffman is correct with respect to two of the factual un derpinning s of his argu ment. There is no evidence that any of the plaintiffs actually read Hoffman s appraisal. It is also clear that each of them ente red into the contract of sale with Beeman prior to Hoffman even being employed to make the appraisal, so the appraisal could not have affected their decision to enter into the purchase con tract. There are several other important facts to be considered, however. As the C ourt of Sp ecial Appeals noted, the plaintiffs were aware of the HUD requirement that, if an appraisal showed the value of the property to be less than the contract price, they had an absolute right to cancel the contract, and Hoffman also knew that to be the case, although he said he was unaware that such an option was provided for in the contract itself. Wood testified that, if the appraisal did not support the contract price, she would have notified the plaintiffs of that fact, and the plaintiffs each testified that, had they been advised of the true value of the property and the reasons why it was less than the contract price, they would , in fact, h ave ca ncelled the con tracts. In each contract of sale was an FHA Amendatory Clause that provided, in relevant part: It is expressly agreed that . . . Buyer shall not be obligated to complete the purchase of the Property described herein or incur any penalty by forfeiture o f monies o n deposit o r otherwis e, unless the Buyer has been given, in accordance with HUD/FHA or VA requirements, a written statement issued by the . . . Direct Endorsement Lender setting forth the appraised value of the Property of not less than the purchase price. Buyer shall have the privilege and option of proceeding with consummation of the Contract without regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the -30- maximum mortgage [HUD ] will insure. HUD does not warrant the value nor the condition of the Property. Buyer should satisfy himself/he rself that the price a nd the con dition of the P roperty are acc eptable . 13 Although that clause m akes clear th at the buyer m ay not rely on the appraisal as a warranty either agains t defects in th e property or that the value o f the prope rty is precisely as state d in the ap praisal, it does per mit th e buyer to rely on the fact that, unless stated otherwise, the value is at least equal to the contract price . It could have no other effect. The buyer may not cancel the contract if the property is appraised at or above the contract price, but only if informed that the appraised valu e is le ss than th e con tract price. Sig nific antly, if in that even t if the buyer elec ts to cancel, his/her deposit or down payment is not forfeited, but must be returned. Th e cancellation, in other word s, is without cost to the buyer. Also implicit in that clause is the ability of the buyer, if the appraisal is less than the contract price, to attempt to ren egotiate the p rice, so that it can be broug ht in line with the appraisa l. Indeed, with the appraisal effectively fixing the maximum contract price in an FHA transaction, even Beeman, who had a fairly substantial investment in the properties, would have had some incentive to renegotiate the ma tter.14 The phony appraisals prepared for Wood by Hoffman, as part of the fraudulent 13 Irwin was a direct en dorsement lender. 14 The reco rd indicates th at Beem an took ou t 100% comme rcial mortga ges to finance his purchase of the properties, that the mortgages carried 14% interest, were due in two years, and were personally guaranteed by Beeman and his wife. He had a clear financial interest in not holding the properties too long. -31- scheme, precluded the plaintiffs from exercising those options. In proceed ing with settlement, they each necessarily, even if implicitly, relied on the fact that Hoffman had correct ly valued the pro perty as at le ast equ al to the c ontract p rice. (5) Consumer Protection Act Maryland Code, § 13-303 of the Commercial Law A rticle, which is part of the S tate CPA, prohibits a person from eng aging in an unfair or deceptive trade practice in the sale of consumer realty. An unfair or deceptive trade practice includes any false or misleading statement or representation which has the capacity, tendency, or effect of deceiving or misleading consumers and encompasses a representation that consumer realty has a characteristic that it does not have or is of a particular standard or quality that is not the case. Commercial Law A rt. § 13-3 01. Section 13-408 of that article provides for a private cause of action to recover for loss or injury sustained as the result of a practice forbidden by the CPA. Citing Morris v. Osmose Wood Preserving, 340 Md. 519, 541, 667 A.2d 624, 635 (1995), Hoffman points out that, for the CPA to apply, the deceptive practice must occur in the sale or offer for sale to consumers. His contention is that he did not sell any consumer realty or offer any consumer services to any of the plaintiffs, but merely provided apprais als to Irw in, for Irw in s ben efit. Morris involved an action by homeowners, in part under the CPA, against the -32- manufacturer of plywood that the builder used in constructing the roofs of their homes and that subsequently deteriorated. We affirmed the dismissal of the CPA claim on the ground that any misrepresentations made by the manufacturer regarding the plywood w ere made to the builder, not the plaintiff-buyers of the homes, and that there was no allegation that the defenda nts were in an y way involved in selling, offering, or advertising the townhouses that the plaintiffs bought. Morris, supra, 340 Md. at 542, 667 A.2d at 636. In holding that the deceptive practice must occur in the sale to consumers, we were careful to point out that we did not mean that the only entity that can en gage in a deceptive practice is one who directly sells or offers to sell to consumers and that [ i]t is quite possib le that a deceptive trade practice committed by someone who is not the seller would so infect the sale or offer for sale to a consumer that the law would deem the practice to have been committed in the sale or offer for sale. Id. at 541, 667 A.2d at 635. For the reasons noted above, the evidence more than sufficed to show that Hoffman s erroneous and misleading appraisals directly infected the sales at issue here. The y would n ot have pro ceeded to closing absent thos e appraisals. H e was an integral part o f the entire scheme of deceptive trade pra ctice s com mitte d in the sa le of consumer realty. B. Non-Economic Damages Physical Injury Rule in Fraud Cases Hoffman, Wood, and Irwin complain about the award of $145,00 0 in non-e conomic damages to each of the plaintiffs in the absenc e of any evid ence that any of the plaintiffs -33- suffered any physical injury from the alleged fraud or d eception. They aver that this Co urt has traditionally precluded the recovery of emotional damages in the absence of some evidence of an accomp anying or consequen tial physical injury and that the lower courts erred in relaxing that rule in this ca se. The plaintiffs counter that the physical injury requirement applies only in negligence cases and not to intentional torts such as fraud. To set the stage, although all of the plaintiffs testified that the p roblems they encountered with their homes caused them emotional distress sadness, anger, humiliation, embarras sment, stress only one of them, Haley, testified as to any physical manifestation of those emotions. Haley, who died prior to tria l, stated in depo sition testimon y that, whenever he began thinking about his problems , he wou ld get head aches and would v omit. Haley also admitted that he was a diabetic and was required to have kidney dialysis three times a week, and that those conditions were not caused by the stress emerging from the problems with his house. At the end of the case, Hoffman, Irwin, and Wood moved for judgment on noneconom ic damages, arguing th at the re w as no corr oboratin g eviden ce of emo tional inj ury. Those motions were denied. In its written instructions on the fraud count, the court told the jury that, in addition to any economic injury suffered by the plaintiffs, it could consider any non-eco nomic injury that it found to be prox imately and dire ctly caused a nd that, in determining non-economic damages, the jury could consider any mental pain, anguish, humiliation, nervousness, stress and insult to which the Plaintiff [was] subjected and which -34- was a direct result of the conduct of one or more Defendants. The award, the court added, must not be based on guesswork but must fairly and adequately compensate the Plaintiff for the injury sustained. Hoffman, Irwin, and Wood excepted to those instructions on the ground that they did not go far enough that the jury should have been instructed that any claimed injury in the nature of non-economic damages must be capable of objective determination and that the evidence must be detailed enough to give you a basis upon which to quantify the injur y. The c ourt disa greed a nd gav e no fu rther ins truction . We recounted the history and rationale o f the physical injury requirement in Vance v. Vance, 286 Md. 490, 408 A.2d 728 (1979). We observed that, in earlier times, courts did not recognize a specific duty to refrain from the negligent infliction of emotional distress and that, as a result, recovery of d amages s olely for mental distress was not permitted. Instead, we said, damages fo r mental distress had a parasitic status; recove ry was dependent upon an immediate physical injury accompanying an independently actionable tort. Id. at 496, 408 A.2d at 731. Over time, we add ed, courts ge nerally and this Court in particular began to modify that a ccompa nying physical im pact rule, be cause it led to arbitrary results, and to create in its place what we termed the modern rule, which permitted recovery for negligent infli ction of m enta l distress if a p hysical inj ury resulted from the commission of the tort, regardle ss of im pact. See Green v. Shoemaker, 111 Md. 69, 73 A. 688 (1909); Bowman v. Williams, 164 Md. 397, 165 A. 182 (1 933); Mahnke v. Moore , 197 Md. 61, 77 A.2d 923 (19 51). -35- Although courts were not averse to eliminating the requirement of an accompanying physical impact, they were reluctant to eliminate entirely the requirement of some consequential physical injury as a condition to the award of damages for emotional or mental distress. There still remained concern that mental distress may be too easily simulated and that there was no practical standard for measuring such distress; thus, recovery for emotional injury would not be allowed based on the plaintiff simply saying, This made me feel bad; this upset me. The modern rule, allow ing recovery of damages for emotio nal distress if there was at least a consequential physical injury, we regarded as a proper balance a sufficient guarantee of genuineness that would otherwise be absent in a claim for mental distress alone. Vance, supra, 286 Md. at 498, 408 A.2d at 732. It simply applied the same rule to this kind of injury that applied to other kinds as well recovery could be had if the injury was objectively ascertainable and was shown to be a provable consequence of the wrongf ul conduc t. That rule itself underwent a significant expansion when we gave an elastic definition to the word physical. In Vance, we noted that, for pu rposes of applying the m odern rule, the term physical was not used in its o rdinary dictiona ry sense, but inste ad is used to represent that the injury for whic h recovery is so ught is capa ble of obje ctive de termina tion. Id. at 500, 408 A.2d at 733-34. In that regard, we observed that it had been held to include such things as de pression, ina bility to work or perform routine household chores, loss of appetite, insomnia, nightmares, loss of weight, extreme ner vousnes s and irrita bility, -36- withdrawal from s ocializa tion, fain ting, che st pains, h eadac hes, and upset sto mach s. Id. at 501, 408 A.2d at 734, and cases there. E xamined analytically, that had m ore to do with proving, rather th an def ining, th is kind o f injury. See also Belcher v. T. Rowe Price, 329 Md. 709, 621 A.2 d 872 (19 93); Faya v. Almaraz, 329 Md . 435, 620 A .2d 327 (1 993); Smith v. Borello, 370 Md. 227 , 804 A.2d 115 1 (2002). Relying on an e arlier de cision, Laubach v. Franklin Square Hosp., 79 Md. App. 203, 556 A.2d 6 82 (19 89), aff d on other grounds, 318 Md. 615 , 569 A.2d 693 (1990), the Court of Special Appeals concluded that the physical injury rule, even as so modified, does not apply in a tort case based on intentional conduct, as proof that the defendant committed the wrong alleged is sufficient reassurance that the plaintiff s claimed emotional distress is not feigned, because the wrongful conduct ordinarily would cause emotional distress in the victim. Hoffman, supra, 155 Md. App. at 321, 843 A.2d at 197. The court thus held that there was no need for th e plaintiff to su pport his claim of em otional distress with objective evidence of a physical injury. Id. Although it is true that most of the cases in which the physical injury rule has been discussed or applied have bee n cases founded on negligence an d the Court has theref ore often expressed the rule as applicable in negligent tort cases, this Court h as never cle arly limited the rule to negligence actions or carved out an exception to it for torts based on fraud. The cases from this Court re lied on by the in termediate a ppellate court in Laubach H & R Block, Inc. v. Testerman, 275 Md. 36, 338 A.2d 4 8 (197 5), abrogated on other grounds by -37- Owen s-Illinois v. Zenobia , 325 Md. 420, 601 A.2d 633 (1992), and Zeigler v. F Street Corp., 248 M d. 223, 2 35 A.2 d 703 ( 1967) do no t suppo rt its contr ary conc lusion. For one thing, both Testerman and Zeigler were negligence cases, not intentional tort cases, so there was no occasion to determine whether the physical injury requirement applied in intentional tort cases. In both cases, the Court merely held, in this rega rd, that physical impact was not a prerequisite to mental anguish damages, which, under the modern rule adopted much earlier in Green, supra, 111 Md. 69, 73 A. 688, and Bowm an, sup ra, 164 Md. 397, 165 A. 1 82, is true. The Court expressly confirmed in Testerman, however, that there still must b e clear ly appare nt and s ubstan tial physica l injury, and that, in consequence of that requirement, Maryland decisions have generally denied compensation for mental anguish resulting from damage to property. Testerman, supra, 275 Md. at 48-49, 338 A.2d at 55. The Testerman court cited Zeigler in supp ort of th at prop osition. Zeigler, indeed, made the same point, that ordinarily, there can be no recovery for mental suffering, resulting from damage done to property, with the caveat that [where] the act occasioning the injury to the pro perty is insp ired by fra ud, ma lice, or lik e motiv es, mental suffering is a proper element of damage. Zeigler, supra, 248 Md. at 226, 235 A.2d at 705. The passage relied on from Zeigler, which was basically a trespass case with an added negligence count, was intended as an exception to the general rule that emotional damages were not recoverable at all where the tortious injury is on ly to property. W e indicated th at, where the injury to the property was motivated by fraud or malice, emotional damages could -38- be recovered, even in the absence of a physical impact. We did not say, or imply, that they could be recovered in the absence of some consequential physical injury of the extended variety noted in Vance. Indeed, the evidence in Zeigler was that the plaintiff, whose home was inundated by dirt and debris due to the conduct of his neighbor, actually died from the stress caused by what was happening to his home. This Court has never addressed whether, or under what conditions, emotional damages may be recove red in an action for fraud. C ourts around the cou ntry seem to be split on the issue. See Steven J. Gayno r, Fraud Actions: Right to Recover for Mental or Emotional Distress, 11 A.L .R. 5 th 88 (1993). M ost courts view fraud as an econom ic tort in the nature of a bre ach o f con tract and thus generall y apply the m easu re of com pensatory damages applicable to a breach o f contract pecun iary loss. See Webster v. Woolford, 81 Md. 329, 330-31, 32 A. 319, 319 (1895) ( T he action, it is true, is in the nature of an action for tort, but it is a tort founded on a breach of contract, and there being no question as to exem plary damages, the rule as to the measure of damages is the same as in cases for breach of contract in regard to the sale of pro perty ); see also R ESTATEMENT (S ECOND) OF T ORTS, § 549 (Measure of D amages for Frau dulent Misrepresen tation) (1977 & Su pp. 1998). In close conformance with that view, some courts have held that emotional damages are not recoverable at all in an action for fraud.15 Other courts have allowed such damages 15 See Mo ore v. Slonim , 426 F . Supp . 524, 52 7 (D. C onn. 19 77), aff d by oral op., 562 F.2d 38 (2 nd Cir. 1977) ; Cornell v. Wunschel, 408 N.W.2d 369, 382 (Iowa 1987); Jourdain v. Dineen, 527 A.2d 1304, 13 07 (Me . 1987); Walsh v. Ingersoll-Rand Co., 656 (continued...) -39- on the premise that the defen dant shou ld be liable fo r the ordinary an d proxim ate consequences of his/her/its actions.16 Some courts have allowed emotional damages only when the defendan t s conduc t is wanton , outrageou s, shows m alice, or wh en there is accompanying physical injury. 17 Others have allow ed such dama ges where em otional injury was foreseeable, where the defendant should have been aware that its fraudulent conduct would cause that kind of distress.18 There clearly is no universal view. We see no reason to create an exception for fraud cases to the c arefully crafted rule enunciated in Vance and the subsequent cases. It is consistent with the more liberal approach adopted by other courts; it remains a fair balance that permits recovery of damages for emotional injury which, by reason of either an accom panying or co nsequen tial physical 15 (...continued) F.2d 367, 370-71 (8 th Cir. 1981) (applying M issouri law); Stich v. Oakdale Dental Center, P.C., 501 N.Y .S.2d 529 , 531 (N.Y . App. D iv. 1986); Citicorp Intern. Trading v. Western Oil & Refining, 790 F. Supp. 428 , 436 (S.D.N.Y . 1992) (applying New York law); Sparrow v. Toyota of Florence, Inc., 396 S.E.2d 645, 64 8 (S.C. Ct. App. 19 90). 16 See Holcombe v. Whitaker, 318 So.2 d 289, 29 2-93 (Ala . 1975); McNeill v. Allen, 534 P.2d 813 , 819 (Colo. Ct. Ap p. 1975). 17 See Ellis v. C rockett, 451 P.2d 814, 820 (Haw. 1 969); Food Fair, Inc. v. Anderson, 382 So.2 d 150, 15 4-55 (Fla. D ist. App. 198 0); S.H. Inv. & Development Corp. v. Kincaid , 495 So.2 d 768, 77 0 (Fla. Dist. A pp. 1986 ); Umphrey v. Sprinkel, 682 P.2d 1247, 12 58 (Idaho 1983); Crowley v. Global Realty, Inc., 474 A.2d 1056, 1058 (N.H. 1984); Emm ons v. M errill Lynch , Pierce, Fe nner & Sm ith, 532 F. Supp. 480, 485 (S.D. Ohio 19 82); McRae v. Bolstad, 646 P .2d 771 , 775 (W ash. Ct. A pp. 198 2), aff d, remanded on other grounds, 676 P.2d 496 (W ash. 1984). 18 See Kilduff v. Adams, Inc., 593 A.2d 478 , 484-85 (Conn . 1991). -40- injury, is objectively ascertainable; and it avoids the dilemma of requiring some physical manifesta tion where the misrepresentation is negligent but not where it is deliberate, even though the conseq uences to th e plaintiff may be precisely the same. The Court of Special Appea ls erred in excusing the plaintiffs from having to show some physical manifestation as a con dition to recove ry of dam ages fo r purely em otional i njury. Because eight of the plaintiffs offered no evidence of any physical manifestation of their claimed emotional stress, the defense motions on that issue should have been granted. The uniform $1 45,0 00 awar ds to them mus t be strick en. A s Ha ley did present suf ficient evidence of some physical man ifestation, an a ward of non-eco nomic da mages to h im wou ld be possible under a correct jury instruction. We can not affirm the award to him because the instruction, to which a proper objection was made, was wrong. As we have indicated, Haley died prior to trial. Whether his estate still can or might desire to pursue a retrial on that issue we cann ot determin e, but we sh all not foreclo se it. 19 C. Evidentiary Standard for Proof of Fraud Damages The trial court gave both written and oral instructions to the jury. In ¶ 4 of its written general instructions, the court told the jury that the plaintiffs were required to prove fraud and conspiracy to commit fraud by clear and convincing evidence, that that burden applied to the 19 Hoffman also complains about the inclusion of injury to credit as part of noneconomic damages. As we are striking the non-economic damages for other reasons, that complaint is moot and need not be addressed. -41- elements of the claim , but that [i]ndividual items of damage attributable to these claims must only be provided by a prepon derance o f the evide nce. Late r, in its written instructions regarding Question 6 on the verdict sheet, which dealt with damages upon a finding of fraud or conspiracy to commit fraud, the court iterated that the plaintiffs had the burden to prove by a preponderance of the evidence each item of injury or loss claimed to be sustained and that such injury was sustained as a proximate result of the Defendant o r Defendants conduct. That in struc tion was also give n ora lly to th e jury. At the conclusion of the oral instructions, Irwin and Wood, but not Hoffman, lodged the following objection: Instruction No. 4 indicates that Plaintiffs only need to satisfy the jury by a preponderance of the evidence on the damages for the conspiracy and fraud claims. We take excep tion to that. The clear and convincing test applies to all elements of the claim s and so on that basis we believe that the clear and convincing standa rd shou ld be as signed to dam ages as well. The trial judge did not agree and responde d that I m g oing to ride with what I ve got as far as that goe s. Irwin and Wood raised this issue on appeal, but the Court of Special Appeals, relying on Casey v. Roman Catholic Arch., 217 Md. 595, 143 A.2d 627 (1958) and Sydnor v . State, 365 Md. 205, 776 A.2d 669 (20 01), cert. denied, 534 U.S. 1090, 122 S. Ct. 834, 151 L. Ed. 2d 714 (2002), held that it was waived because, although an objectio n was pro perly made to general instruction No. 4, no objection was made to Question 6 or the oral restatement of it. Hoffman, supra, 155 Md. App. at 326-28 , 843 A.2d at 200-01 . Those ca ses are not in point, -42- and we think that the in termediate appellate court erred in its find ing of waiver. Maryland Rule 2-520(e) requires, as a condition to seeking appellate review of a jury instruction, that the party object promptly after the instruction is g iven and stat[e] distinctly the matter to which the party objects and the grounds of the objection. The purpose of the rule, as we h ave mad e patently clear o n a numb er of occa sions, is to en able the trial court to correct any inadvertent error or omission in the oral [or written] charge, as well as to limit the review on app eal to those errors which are brought to the trial court s attention. Fisher v. Balto. Transit Co., 184 Md. 399 , 402, 41 A.2d 29 7, 298 (1945). In that ma nner, the trial judge is afforded an oppo rtunity to amen d or supple ment his ch arge if he deems an amendment necessary. Sergean t Co. v. Pick ett, 283 Md. 284, 288, 388 A.2d 543, 546 (1978) (quoting in part from State v. Wooleyhan Transport Co., 192 Md. 686, 689-90, 6 5 A.2d 321, 322 (1949)). Although we have often said that objections must be precise, the purpose of precision is that the trial court has no opportunity to correct or amplify the instructions for the benefit of the jury if the judge is not informed of the exact nature and grounds of the objection. Fearn ow v. C & P Telephone, 342 Md. 363, 378, 676 A.2d 65, 72 (1996). Irwin and Wood clearly presented to the trial court their view that every element of an action of fraud, including damages, had to be proved by clear and convincing evidence. Although counsel briefly referenced Question 4, the objection, unmistakably, was to allowing the jury to find damages based on a mere preponderance of the evidence, and the judge -43- seemed to understa nd that poin t but simply disagreed. In Casey, the plaintiff objected to an initial jury instruction on damages, whereupon the court gave a supplemental instruction, to which no objection was made. On appeal, the plaintiff com plained on ly about a deficiency in the supplem ental instruction , which w e held was waived. In Sydnor, the defendant, who did not object to the initial instruction, complained about a supplemental restatement of that instruction. Both the Cou rt of Special Appe als and this Court held that the objection was preserved. The objection here was clearly preserved. The problem for Irwin a nd Wo od is that the objec tion has no merit. In order to recover damages in an action of fraud, the plaintiff must prove, by clear and convincing e vidence, am ong other things, that he /she/it suffe red comp ensable inju ry resulting from the misrepresentation. VF Corp., supra, 350 Md. at 703, 715 A.2d at 193 (quoting Nails, supra, 334 M d. at 415, 63 9 A.2d a t 668); see also E nvironm ental Trust, supra, 370 Md. at 97, 803 A.2 d at 516. W hat must be proved b y that standard is that some compen sable injury arose from the deceit, because a compensable injury arising by reason of the fraud is an element of the tort. W e have never held , however, that the measure of the damages required to c ompens ate for that in jury must be proved by clear and convincing evidence. Indeed, in Empire Realty Co. v. Fleisher, 269 Md. 278, 284, 305 A.2d 144, 148 (1973), we drew a distinction b etween liab ility for damages, on the one hand, and the measure of those damages, on the other, noting that, as to the latter, though not the fo rmer, Marylan d applie s the fl exible a pproac h to dam ages fo r fraud and de ceit. -44- We have required a higher standard of proof in fraud cases because of the seriousness of the allegations an imputation of dishonesty sometimes bordering on criminal behavior. See Everett v. Baltimore Gas & Elec., 307 Md. 286, 301, 513 A .2d 882, 890 (198 6), overruled on other grounds by Coleman v. Anne Arundel Police, 369 Md. 108, 797 A.2d 770 (2002). Tha t ratio nale has n o relevan ce to the p roof of sp ecif ic ele men ts of loss or injury, however, especially in tort cases. There is no reason to require a greater quantity or higher quality of eviden ce to show the amount of economic loss or the nature or degree of emotional injury caused by fraudulent conduct than that cau sed by neglige nt conduc t. The thing to be proved in either case is the same. The trial court did not err in permitting individual items of damage attributable to the fraud and conspiracy claims to be proved by a preponderance of evidence. D. Punitive Damages As we have previously observed, to establish the tort of fraud, the plaintiff must prove, among other things, that the defendant made a false representation to the plaintiff and that its falsity was either known to the defen dant or that the represe ntation wa s made w ith reckless indifference a s to its truth. (Em phasis a dded). Environmental Trust, supra, 370 Md. at 97, 803 A.2d at 516 (quoting VF Corp., supra, 350 Md. at 703, 715 A.2d at 192-93). Reckless indifference as to truth arises when the defendant makes the representation even though aware tha t he does n ot know whether it is true or false where he knows that he lacks -45- knowledge as to its truth or falsity and nonetheless ma kes the representation w ithout regard to that lack of kno wledg e. See Ellerin v . Fairfa x Savin gs, 337 Md. 216, 232, 652 A.2d 1117, 1125 (1995). Although that alternative mental state of reckle ss indiffere nce suffic es to suppo rt a finding of fraud and an award of compensatory damages that flow from it, we made clea r in Ellerin that it does not suffice to justify an award of punitive damages. We pointed out that, in Owen s-Illinois v. Zen obia, 325 Md. 420, 601 A.2d 633 (1992), reconsideration denied, 325 Md. 665, 602 A.2d 1182 (199 2), the Court modified the standard for an award of punitive damages and that, under the new standard, as applied in fraud cases, actual knowledge of falsity include[s] the type of deliberate wrongdoing and evil motive that has traditionally justified the aw ard of pu nitive dam ages, but th at, where th e fraud is based on the alternative state of reckless disregard, the traditional basis for the allowability of punitive damages is not present. Ellerin, supra, 337 Md. at 235, 652 A.2d at 1126. What is needed to support an award of punitive damages is conscious and deliberate wrongdoing. The Court thus concluded that only a person s actual knowledge that his statement is false, coupled with his intent to deceive another by means of that statement, constitute the actual malice required for the availability of punitive damages. Id. at 240, 652 A.2d at 1129. The Ellerin court recognized and confirmed, however, that actual knowledge did include the wilful refusal to know. Id. at 235, n.10, 652 A.2d at 1126, n.10 (quoting Zenobia, supra, 325 M d. at 462 , n.23, 60 1 A.2d 654, n.2 3). Zenobia made the same po int: -46- Actual knowledge, however, does include the wilful refusal to know. See, e.g., State v. McCallum, 321 Md. 451, 458-61, 583 A.2d 250, 253-55 (1991) (Chasanow, J., concurring) ( [K]nowledge exists whe re a person believes tha t it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth. ) Therefore, a defendant cannot sh ut his eyes or plug his ears wh en he is pres ented with evidence of a defe ct and there by avoid liability for p unitive dama ges. Zenobia , supra, 325 Md. at 462, n.23, 601 A.2d at 654, n.23. See also L e Marc s v. Valentin , 349 Md. 64 5, 653, n.4, 709 A.2d 1222, 1226, n.4 (19 98). Aware of Zenobia and Ellerin, the trial court concluded that, although there was sufficient evidence that Hoffman, Irwin, and Wood acted with reckless disregard as to whether statements m ade to the p laintiffs, including the appraisals prepared by Hoffman, were true or false, there was not sufficient evidence to establish that they had actual knowledge of the falsity of those statements. It was on that finding that the court granted partial judgment to those defendants and withdrew the punitive damage claims as to them from the ju ry. On the plaintiffs cross-appeal, the Court of Special Appeals reversed that ruling. As to Woo d and Ir win, the court concluded that the evidence introduced to show liability for fraud, which show[ed] that Wood participated in creating a number of false impressions for the buyers, by word s and con duct amo unting to pa rtial and fragme ntary disc losures , Hoffman, supra, 155 Md. App. at 305, 843 A.2d at 188, was sufficient to send the issue of punitive damages to the jury. Id. at 342, 843 A.2d at 209. That conclusion, in turn, was -47- drawn from evidence that (1) at the initial meetings with the plaintiffs, Wood treated Beeman, whom she knew to be the seller, as if he was the buyer s representa tive, (2) she misused her good faith estimates to set or increase the sales price for the properties, and (3) she misled the buyers into thinking that it was prop er for Bee man to be arranging gift letters. Id. As to Hoffman, the court believed that Hoffman knew that he was furnishing inaccurate appraisals. Two issues are pre sented: first, w hether the C ourt of Sp ecial App eals was c orrect in concluding that there was sufficient evidence of actual knowledge, of either the affirmative or willful blindness variety, on the part of Wood and Ho ffman, b ased on th eir own c onduct; and second, if not, whether Wood, Irwin, and Hoffman can be held liable for punitive damages based on their participation in the conspiracy with Beeman, whose liability for punitive damage s based on his conduct is unquestioned. For reasons to be explained, we need not decide either issue. The first issue hinges, to some extent, on the very subtle distinction between willful blindness to fraudulent activity, which suffices as actual knowledge, and reckless disregard for truth or falsity, which does not. W illful blindnes s occurs w hen a pers on has h is suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance. State v. McCallum, supra, 321 Md. at 459-60, 583 A.2d at 253-54 (Chasanow, J. concurring) (quoting United Sta tes v. Jewell, 532 F.2d 697, 70 0 (9 th Cir. 1976)). A reckles sly indifferent person, on the other hand, has actual knowledge that he or -48- she [does] not know whether the statement [is] true or false, but, with reckless indifference to the truth, [makes] the statement with the intent of deceiving the listener. Le Marc s, supra, 349 Md. at 654, 709 A.2d at 1227. The subtle gradient that makes the former more culpable is that the person actually suspects that the representation is false and chooses not to investigate, whereas the latter simply does not know and does not care. There are two dilemm as here . The first is that the trial court acted inconsistently on this issue. It withdrew the punitive damage claim as to Hoffman, Irwin, and Wood b ecause it concluded that there was lega lly insufficient evidence of actual kn owledge on th eir part that the fraudulent representations they made were, in fact, false. Yet, it concluded that there was sufficient evidence of such actual knowledge to submit the issue to the jur y with respect to the frau d coun t itself. O rdinarily, that might n ot be a prob lem, but her e it is. In its instructions on the fraud count, the court stated th at, to recover, the plaintiffs had to prove, by clear and convincing evidence, that the representations made by them were false and that its falsity was known to the Defend ant at the time of the repre sentation. E arlier, in explaini ng knowledge, the court told the ju ry: Now, in determining whether someone had knowledge of something you may look at all the evidence in the case and use your own common sense in determining whether that person really knew what was going on. Y ou may draw reasonab le inferences from facts but you must take care to avoid guess work or speculation. You may consider the willful and knowing violation of a statute o r the willful and knowing violation of a known duty as evidence of such knowledge. You may also consider whether the person involved willfully refused or deliberately refused to look at the facts in the face of obvious -49- facts because such willful refusal to know in the face of obvious facts may be deem ed kno wledg e. If you find that a person was willfully blind or made a consci[ous] effort not to know something th[e] n you m ay determine under all the facts in the case that the person ac tually knew it. (Emphasis add ed). Those instructions, when juxtaposed, presented to the jury only the actual knowledge variety of fraud. Although the court included willful blindness as an aspect or part of actual knowledge, as, under our recent case law it was obliged to do, it did not permit the jury to find fraud on the basis of reckless indifference or reckless disregard. In denying the defendants motions for judgment and submitting that instruction, thereby permitting the jury to determine fraud based solely on actual knowledge, the court necessarily concluded that there was legally sufficient evidence to permit such a finding to be made by clear and convincing evidence. That con clusion is inconsistent with the con trary finding made regarding the punitive damage claim. The relevant question, of course , is whether the evidence actually did suffice to show actual knowledge on the part of Hoffman and Wood, which brings us to the second dilemma that of preservation. At the conclusion of the evidence, Hoffman, Wood, and Irwin filed memoranda in support of their respective motions for judgment and jury instructio ns. As to the fraud count, Hoffman complained only about the lack of evidence of reliance by the plaintiffs on his appraisals. He did not argue a legal insuf ficiency of ev idence reg arding his actual knowledge that the appraisals were false and misleading . That wa s true as we ll with -50- his motion for judgm ent NO V, filed afte r the jury returned its verdicts; his complain t as to Count II for fraud w as only that the p laintiffs had failed to prove reliance. Irwin and Wood, as to the fraud count, argued in their memorandum only that willful failure to know does not constitute actual knowledge and that there was no evidence that the plaintiffs relied on any of Wood s representations. Other than their mistaken effort to have the court, as a matter of law, reject willful failure to know as a form of actual knowledge, they also did not argue an insufficien cy of eviden ce of actua l knowled ge. That w as true as w ell with respe ct to their motion for judgment NOV. Before us, these defendants make essentially the same limited arguments as to the fraud count that they made in the trial court. Hoffman complains about the lack of reliance on his appraisa ls. Irwin and Wood complain about the e videntiary stand ard used to determine damages arising from the fraud. None of them have argu ed that there was lega lly insufficient evidence of actual knowledge to preclude submission of the fraud claim to the jury. To attack the evidence of actual knowledge with respect only to the punitive damage claim is, itself, inconsistent. If they are satisfied , at this point, that th ere was leg ally sufficient evidence to sustain the jury s finding of fraud based on the very kind of actual knowledge that would also support a claim for punitive damages, they have no enduring claim that it was insufficient to submit the punitive damage claim to the jury, sinc e both rested on precisely the same evid ence as to a ctual know ledge. For th at reason, w e shall -51- affirm the determination by the Court of Special Appeals that the punitive damage claims should have been submitted to the jury. Had we reached the issue, we would have found the eviden ce suff icient to s how th e kind o f actua l know ledge re quired for pu nitive da mage s. E. Limited Remand Having conclude d that the claim for punitive damages against Hoffman, Irwin, and Wood was wr ongfully withheld from the jury, the Court of Special Appeals determined that the plaintiffs were entitled to a partial new trial limited to that claim whether punitive dama ges w ere wa rranted agains t those d efend ants. Hoffman, supra, 155 Md. App. at 343, 843 A.2d at 21 0. The co urt held that, if the jury finds the evidence admitted at th at trial is sufficient to establish the plaintiffs entitlement to punitive damages, a separate hearing on the pro per am ount of those d amag es wo uld hav e to be h eld. Id. Hoffman, Irwin, and W ood com plain that suc h a limited rem and wo uld be terribly prejudicial in that consideration of punitive damages would be detached from the evidence and theories pertaining to the underlying fraud. They urge that, if there is to be a new trial, the judgment entered on the fraud count should be stricken and the new trial should include both liability and damages. The plaintiffs respond, of course, that requiring a full retrial as to liability and compensatory damages would b e unfair to them. They note as well that they had suggested in the trial court that the jury answer two conditiona l questions tha t would have avoided this problem but that the defendants rejected that approach. -52- Maryland Rule 8-604(b) permits an a ppellate cou rt, if it conclude s that error aff ects a severable pa rt of the action , to reverse or m odify the judg ment as to th at severable part, remand that part for f urther proc eedings, an d affirm th e other parts o f the judgm ent. That is precisely what the Court of Special Appeals did in this case. In Caldor v. Bowden, 330 Md. 632, 625 A.2d 959 (1993), after concluding that, because a punitive damage award had been based, in part, on verdicts for compensatory damages that were stricken through judgmen ts NOV, the punitive award could not stand, we applied that Rule and remanded the case for a lim ited retria l on just th e punitiv e dam ages. See also Bowden v. Caldor, 350 Md. 4, 710 A.2 d 267 (19 98); Alexander v. Evander, 88 Md. A pp. 672 , 596 A .2d 687 (1991 ), cert. denied, 326 Md. 43 5, 605 A.2d 13 7 (1992). There was no error in ordering the limited remand as to punitive damages. F. Attorneys Fees As noted, the Court of Special Appeals struck the award of $195,591 in attorneys fees entered as ancillary relief under the CPA a nd reman ded that issu e as well for reconsideration. Its decision w as based o n the prem ise that, as an award of attorneys fees under the CPA must take into account the amount of recovery on the substantive claims and there was the prospect of an additional punitive d amage recove ry against Hoffman, Wood, and Irwin, the trial court should revisit the matter based on what the jury might do with the punitive damage claim. Hoffman, supra, 155 Md. A pp. at 344-4 5, 843 A .2d at 211. T he interme diate -53- appellate court, for guidance, also suggested that the trial court erred in directing that there be a dollar-for-dollar reduction in that award for whatever the plaintiffs attor neys recovered under t heir con tingent f ee agre emen t with th e plaintif fs. Id. at 345, 843 A.2d at 211-12. Irwin and Wood have made no complaint about the attorney fee award. Hoffman complains that the remand w as inappro priate in that the award is justified only under Count III the CPA claim an d that it canno t be based o n punitive d amages a wardab le only under Coun t II for fr aud. Hoffman is correct. Maryland C ode, § 13-4 08(a) of th e Comm ercial Law Article authorizes a private cause of action to recover for injury or loss sustained by him as the result of a practice prohibited by this title. Section 13-408(b) provides that a person who brings an action to recover fo r injury or loss under this section and who is awarded damages may also seek, and the court may award, rea sonable attorney s fees. (Emphasis added). The fee award is limited to the CPA action and may not be based on additional recoveries under other ca uses of action. See Barnes v. Rosenthal, 126 Md. App. 97, 103-04, 727 A.2d 431, 434 (1999); Mercedes-Benz v. Garten, 94 Md. App. 547, 568-69, 618 A.2d 23 3, 243 (1993). Punitive damages may not be awarded in an action brought under § 13-408. In Golt v. Phillips, 308 Md. 1, 12, 517 A.2d 328, 333 (1986), we concluded that the private remedy under that section was purely compensatory and contains no punitive component. Because the remand for reconsideration of attorneys fees was based solely on the prospect -54- of punitive damages being awarded under the fraud count, it was erroneous. 20 JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED IN PART AND R EVERS ED IN PART; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS (1) TO MODIFY JUDGM ENTS FOR ALL PLAINTIFFS BY STRIKING AWARD OF $145,000 FOR NONECON OMIC DAM AGES O R TO R EMAN D TO C IRCUIT COURT FOR BALTIMORE CITY FOR THAT PURPOSE; (2) TO REMAND CASE AS TO PLAINTIFF CARL HALEY FOR FURTHER PROCEEDINGS AS TO NONECON OMIC DAMAGES; (3) TO REMAND CASES TO CIRCU IT COURT FOR BALTIMORE CITY FOR NEW TRIAL AS TO PUNITIVE DAMAGES AGAINST PETITIONERS HOFFMAN, IRWIN AND WOOD; AND (4) TO OTHER WISE AFFIRM JUDGMENTS ENTERED BY CIRCU IT COURT FOR BALTIMORE CITY. COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID 3/4 BY PETITIONERS HOFFMAN, IRWIN, AND WOOD AND 1/4 BY RESPONDEN T PLAINTIFFS. 20 There m ight have b een a basis f or remand to consider lowering the award as to all plaintiffs except Haley, given our conclusion that the judgments in favor of those plaintiffs must be amended to strike the award of non-economic damages, but none of the parties has sought that relief. -55-
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