
    CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    Ouida M. Starbuck et al. v. Horace A. Cistola et al.
    May 20, 1981
    Case No. (Law) 10,140
   By JUDGE BERNARD G. BARROW

I have concluded that the defendants’ Demurrer to the Amended Motion for Judgment should be overruled.

Generally only compensatory damages are recoverable in an action for breach of contract. However, in exceptional cases where the breach constitutes an independent wilful tort, exemplary or punitive damages may be recovered upon proof of malice, wantonness, or oppression. See Wright v. Everett, 197 Va. 608 (1956).

In the past, those who sought punitive damages for breach of contract were required to elect to proceed either in tort or upon the contract. Goodstein v. Weinberg, 219 Va. 105 (1978). However, the statute now permits the joinder of actions in tort and contract where the claims arise out of the same transaction or occurrence. Va. Code Section 8.01-272 (Supp. 1980).

In the Amended Motion for Judgment, the plaintiffs allege that the defendants "wilfully and maliciously disregarded their contractual responsibilities and their common law duty to plaintiff." Plaintiffs also allege that the defendants’ actions "constitute an independent and wilful tort." In my opinion, the allegations contained in the Motion for Judgment as amended are sufficient to overcome the test of sufficiency interposed by the defendants’ Demurrer.

The defendants’ Demurrer also refers to various provisions in the lease in question which the defendants contend bar the plaintiffs’ claim. However, at very best this contention will require the determination of certain facts and is not appropriately raised by Demurrer.  