MAC Inmex, Inc. v. Dinesh Jasani

• Court: Court of Appeals of Virginia
• Decided: July 14, 2026
• Docket: 1138254
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Record No. 1138-25-4

MAC INMEX, INC. v. DINESH JASANI, ET AL.

Present: Judges AtLee, Friedman and Senior Judge Annunziata Argued at Alexandria, Virginia Opinion Issued July 14, 2026*

FROM THE CIRCUIT COURT OF STAFFORD COUNTY Michael E. Levy, Judge

Cullen D. Seltzer (Andrew Biondi; Sands Anderson PC, on briefs), for appellant.

(Stephen E. Heretick; Stephen E. Heretick, P.C., on brief), for appellees. Appellees submitting on brief.

MEMORANDUM OPINION BY JUDGE ROSEMARIE ANNUNZIATA

MAC Inmex, Inc., appeals the circuit court’s judgment awarding possession of a

commercial premises to Dinesh Jasani and Vinay Kakadia (collectively, the landlord). MAC

Inmex is the successor company of a 2023 merger between two corporations to which the

landlord had leased the property in 2016. The circuit court found that MAC Inmex’s assumption

of the tenancy after the merger violated the lease’s prohibition on assignments or transfers

without the landlord’s written permission. The court rejected MAC Inmex’s argument that a

2019 amendment to Code § 13.1-721, which explicitly provides that a merger is not a “transfer,”

applied to the case. For the following reasons, we affirm the court’s judgment.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND

In August 2016, Marvi, Inc. and Ziya, Inc. signed a lease renting commercial property

from the landlord for a 10-year term. The lease required the tenants to obtain the landlord’s

written consent to “transfer or assign” their tenancy. In 2023, Marvi and Ziya merged to become

MAC Inmex. After the merger, MAC Inmex claimed to be the tenant under the lease and satisfied

all contractual obligations.

Marvi and Ziya did not obtain the landlord’s written consent to transfer or assign the lease to

MAC Inmex. In January 2024, the landlord sent Marvi, Ziya, and the lease guarantors a notice of

intent to cure, asserting that the merger violated the lease’s prohibition on transfers or assignments.

Marvi and Ziya responded that they had not violated the lease because, upon merger, all rights

vested in MAC Inmex as the successor company.

The landlord filed an unlawful detainer asserting that the merger violated the non-transfer

clause. Before trial, MAC Inmex filed a brief arguing that under Code § 13.1-721, a merger was not

a “transfer, reversion or impairment,” and that “every contract right” Marvi and Ziya possessed

automatically vested in MAC Inmex. Thus, MAC Inmex maintained that the lease agreement did

not require the landlord’s written consent “for a merger.” MAC Inmex acknowledged that Code

§ 13.1-721 was amended in 2019 and asserted that the amendment “evidence[d] a clear legislative

intent that a merger” is not “a transfer or assignment.” Indeed, MAC Inmex’s brief posited that the

2019 amendments effected a change in the law by acknowledging that if the merger had occurred

before the 2019 amendments, “the amendment could not be applied retroactively to implement the

expanded rights of the statute to a merger that predated the enactment.” (Emphasis added). Still,

MAC Inmex argued that it could rely on the 2019 amendment’s “expanded rights” because the

merger did not occur until 2023.

-2- At the bench trial, MAC Inmex reiterated that under Code § 13.1-721, a merger was “a

complete transfer of all rights, contractual and otherwise.” MAC Inmex asserted, “that change in

the law occurred in 2019,” and the merger did not occur until 2023. (Emphasis added). MAC

Inmex again acknowledged that if the merger had predated the 2019 amendments, the change in the

statute “would not have retroactively cured that merger.” Consequently, MAC Inmex argued that

under the 2019 amendments, the merger was “not an assignment or a transfer.” The landlord

countered that the version of Code § 13.1-721 in effect when the lease was signed in 2016

controlled interpretation of the lease. The landlord asserted that under the 2016 version, the merger

caused a “transfer,” which violated the lease’s non-transfer clause. See Code § 13.1-721(A)(3)

(2016); 2005 Va. Acts ch. 765.

Following argument, the circuit court held that the lease should be interpreted under the law

that existed when it was signed in 2016, not the 2019 amendment. The court found that the 2019

amendment does not apply retroactively to control the lease’s interpretation and that the parties’

contractual rights established in 2016 could not be effected by the amendment. Thus, the court held

that MAC Inmex’s assumption of the tenancy after the merger without the landlord’s written

consent violated the lease’s non-transfer clause. Accordingly, it awarded landlord possession of the

premises.

On appeal, MAC Inmex argues that the circuit court erred by awarding the landlord

possession of the premises because the 2019 amendment to Code § 13.1-721 was procedural only

and did not effect a substantive change to the law. Rather, the amendment merely “clarified

ambiguities” in the statute regarding the effect of mergers. MAC Inmex insists that a merger is not

and never has been a “species” of assignment as a matter of law, so it must prevail irrespective of

which version of the statute applied. Alternatively, MAC Inmex asserts that the court erred by

finding that the 2019 amendments did not have “retrospective application.”

-3- ANALYSIS

I. MAC Inmex has approbated and reprobated by assuming contradictory positions at trial and on appeal, and many of its arguments are not preserved.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection

was stated with reasonable certainty at the time of the ruling, except for good cause shown or to

enable this Court to attain the ends of justice.” Rule 5A:18. “Specificity and timeliness undergird

the contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to

resonate with simplicity.” Hogle v. Commonwealth, 75 Va. App. 743, 755 (2022) (quoting

Bethea v. Commonwealth, 297 Va. 730, 743 (2019)). Indeed, the “precise nature” of the

argument “must be clear because ‘[m]aking one specific argument on an issue does not preserve

a separate legal point on the same issue’” for review. Mollenhauer v. Commonwealth, 73

Va. App. 318, 329 (2021) (alteration in original) (quoting Johnson v. Commonwealth, 58

Va. App. 625, 637 (2011)). Even where a position remains the same, a party may not raise a new

rationale for that position on appeal and expect this Court to consider it as an initial proposition.

See Commonwealth v. Holland, 304 Va. 34, 38 (2025) (“Appellate courts are a court of review,

not first view.”). “[N]either an appellant nor an appellate court should ‘put a different twist on a

question that is at odds with the question presented to the [circuit] court.” Bethea, 297 Va. at

744 (quoting Commonwealth v. Shifflett, 257 Va. 34, 44 (1999)).

Further, a “litigant cannot ‘approbate and reprobate by taking successive positions in the

course of litigation that are either inconsistent with each other or mutually contradictory,’ or else

such arguments are waived.” Amazon Logistics, Inc. v. Va. Emp. Comm’n, 304 Va. 107, 114 (2025)

(quoting Rowe v. Commonwealth, 277 Va. 495, 502 (2009)). The doctrine “applies both to

assertions of fact and law.” Nelson v. Commonwealth, 71 Va. App. 397, 403 (2020) (quoting

Babcock & Wilcox v. Areva, 292 Va. 165, 204-05 (2016)). And it protects “basic notions of fair

play in our adversarial system.” Amazon Logistics, Inc., 304 Va. at 107. Litigants “must ‘elect a -4- particular position’ and are thereafter confined ‘to the position that [they] first adopted.’” Id. at 115

(alteration in original) (quoting Matthews v. Matthews, 277 Va. 522, 528 (2009)).

At trial, MAC Inmex argued that the 2019 amendment to Code § 13.1-721 effected a

“change” in the statute by providing that mergers are not transfers as a matter of law. MAC Inmex

asserted that the 2019 amendment provided “expanded rights” and that “the amendment could not

be applied retroactively to implement the expanded rights of the statute” if the merger had

“predated” the amendment. Indeed, Mac Inmex’s trial argument rested entirely on the premise that

the 2019 amendment “expanded” its rights, and it needed to rely on those expanded rights to

prevail. Yet, MAC Inmex now argues that the 2019 amendment was procedural only and did not

effect a substantive change in the law; rather, it merely “clarified ambiguities” in the statute. MAC

Inmex contends that it does not matter whether the amendment was retroactive because a “merger”

is not and never has been a “transfer” or “assignment” as a matter of law, so it should prevail even

under the 2016 version of the statute.

MAC Inmex, however, never argued to the circuit court that the merger was not an

assignment or transfer as a matter of law regardless of Code § 13.1-721, or that it should prevail

even under the 2016 version of the statute. Indeed, MAC Inmex’s appellate argument has put a

“different twist” on the question “that is at odds with the question presented to the [circuit] court.”

Bethea, 297 Va. at 744 (quoting Shifflett, 257 Va. at 44). Thus, those arguments are not preserved

for appeal. Rule 5A:18. Moreover, MAC Inmex’s appellate arguments are inherently inconsistent

with its trial position. Accordingly, MAC Inmex has approbated and reprobated at different stages

of litigation, and the only portion of its argument that is not waived is its contention that the 2019

amendment had retroactive effect and should control interpretation of the 2016 lease.

-5- II. The 2019 amendment to Code § 13.1-721(A)(3) was not retroactive.

We review de novo “issues of statutory interpretation and a circuit court’s application of

a statute to its factual findings.” Cole v. Smyth Cnty. Bd. of Supervisors, 298 Va. 625, 635

(2020). Likewise, whether “a statute can be applied retroactively is a pure question of law that [this

Court] review[s] de novo.” Doe v. Green, 304 Va. 536, 544 (2025) (citing Hannah v.

Commonwealth, 303 Va. 106, 121 (2024)).

Code § 13.1-721 delineates the effect a merger of corporations has on the merging and

surviving corporations’ rights and liabilities. See Metro Van & Storage Co. v. Commonwealth, 216

Va. 544, 546 (1976) (applying predecessor of Code § 13.1-721 and noting that “the effect of a

merger upon a non-surviving corporation is to be determined by the terms and intent of the statutes

involved”). In 2016, the statute provided that when a merger occurs:

Property owned by, and, except to the extent that assignment would violate a contractual prohibition on assignment by operation of law, every contract right possessed by, each . . . entity that merges into the survivor is vested in the survivor without reversion or impairment.

Code § 13.1-721(A)(3) (2016); see also 2005 Va. Acts ch. 765. By contrast, after the 2019

amendment, the statute provides that when a merger occurs:

All property owned by, and every contract right possessed by, each . . . entity that merges into the survivor is vested in the survivor without transfer, reversion or impairment.

Code § 13.1-721(A)(3); 2019 Va. Acts ch. 734.1

“Virginia law does not favor retroactive application of statutes.” Bailey v. Spangler, 289

Va. 353, 358 (2015) (citing Bd. of Supervisors. v. Windmill Meadows, LLC, 287 Va. 170, 179-80

1 The 2019 amendments were as follows: “Property All property owned by, and, except to the extent that assignment would violate a contractual prohibition on assignment by operation of law, every contract right possessed by, each domestic or foreign corporation or eligible entity that merges into the survivor is vested in the survivor without transfer, reversion or impairment.” 2019 Va. Acts ch. 734. -6- (2014)). “As a matter of first principles, interpreting a law to apply retroactively is ‘not favored,

and . . . a statute is always construed to operate prospectively unless a contrary legislative intent

is manifest.’” McCarthy v. Commonwealth, 73 Va. App. 630, 647 (2021) (alteration in original)

(quoting Berner v. Mills, 265 Va. 408, 413 (2003)); see also Gionis v. Commonwealth, 76

Va. App. 1, 11 (2022) (same); Booth v. Booth, 7 Va. App. 22, 26 (1988) (same).

Pertinent here, “new legislation will ordinarily not be construed to interfere with existing

contracts, rights of action, suits, or vested property rights.” Harbour Gate Owners’ Ass’n v. Berg,

232 Va. 98, 103 (1986). “One of the basic rules of construction of contracts is that the law in force

at the date of making a contract determines the rights of the parties under the contract.” Goldin v.

Goldin, 34 Va. App. 95, 105 (2000) (quoting Paul v. Paul, 214 Va. 651, 653 (1974)). “The law

effective when the contract is made is as much a part of the contract as if incorporated therein.”

Paul, 214 Va. at 653. Accordingly, “rights accrued . . . under the former law . . . before the passage

of an amended statute will not be affected by [the amendment], but will be governed by the original

statute, unless a contrary intention is expressed in the later statute.” Va. Elec. & Power Co. v. State

Corp. Comm’n, 300 Va. 153, 165 (2021) (alterations in original) (quoting Gloucester Realty Corp.

v. Guthrie, 182 Va. 869, 873 (1944)).

The 2019 amendment to Code § 13.1-721(A)(3) contains no express statement that the

amendment applies retroactively. See 2019 Va. Acts ch. 734. The statute makes no reference to

“retroactive” or “retrospective” application. See Green v. Commonwealth, 75 Va. App. 69, 82

(2022) (holding that Code § 19.2-306.1 did not apply retroactively). And there is no language

making the statute applicable to contracts “heretofore and hereafter made.” See Gloucester Realty

Corp., 182 Va. at 873; cf. Duffy v. Hartsock, 187 Va. 406, 418 (1948) (holding that an amendment

relating to another statute that expressly applied to “any judgments heretofore or hereafter rendered”

had retroactive effect).

-7- Nor is any retroactive intent otherwise “manifest beyond reasonable question on the face

of [the] enactment.” City of Charlottesville v. Payne, 299 Va. 515, 530 (2021). For example, it

includes neither a date on which the statute is retroactive nor deletes any previous date restriction.

See, e.g., Johnson-Bey v. Commonwealth, 303 Va. 386, 393-94 (2024) (holding that legislation

amending and reenacting statute was not retroactive where it did not expressly provide for

retroactivity in compliance with Code § 1-238); Sussex Cmty. Servs. Ass’n v. Va. Soc’y for Mentally

Retarded Child., 251 Va. 240, 243 (1996) (holding that by removing a time limitation, the General

Assembly evinced its intent to make an amendment retroactive).

The use of the terms “All property owned by, and every contract right,” 2019 Va. Acts ch.

734 (emphases added), does not change our conclusion. Although the Supreme Court has held that

“unrestrictive modifiers” such as “an,” “any,” and “all,” are “generally considered to apply without

limitation,” Sussex Cmty. Servs. Ass’n, 251 Va. at 243, the Court has relied on such modifiers to

find retroactive effect only where additional context supported that conclusion. See Street v.

Commonwealth, 75 Va. App. 298, 306 (2022) (noting that when interpreting a statute, we “must

‘examine a statute in its entirety, rather than by isolating particular words or phrases’” (quoting

Schwartz v. Commonwealth, 45 Va. App. 407, 450 (2005))). For example, the Supreme Court

concluded that the term “any restrictive covenant” in a 1991 amendment to Code § 36-96.6(C)

applied retroactively to restrictive covenants recorded before the effective date of the amendment.

Sussex Cmty. Servs. Ass’n, 251 Va. at 243-45. But the Court also relied on the fact that the earlier

version of the statute had expressly limited its application to restrictive covenants executed after

July 1, 1986. Id. at 244. By removing that time limitation, the General Assembly evinced an intent

to make the 1991 amendment apply retroactively. Id. at 244-45. Here no similar additional context

supports the conclusion that the 2019 amendment to Code § 13.1-721(A)(3) applies retroactively.

-8- “[T]he General Assembly knows how to make its intent manifest that a statute has

retroactive application,” but it has not done so here. City of Charlottesville, 299 Va. at 531. We

see no “express manifestation of intent by the legislature” for the 2019 amendment to Code

§ 13.1-721(A)(3) to apply retroactively, so we will not infer one. Va. Elec. & Power Co., 300 Va.

at 166 (quoting Bailey, 289 Va. at 359). Thus, the circuit court did not err by concluding that the

codification of Code § 13.1-721(A)(3) in effect in 2016 when the lease was formed controls

interpretation of the lease, and the 2019 amendments did not apply retroactively to undo any

contract rights established in 2016.2

CONCLUSION

For the foregoing reasons, the circuit court’s judgment is affirmed.

Affirmed.

2 This opinion is narrow and addresses only the arguments as they were presented to the circuit court and are preserved on appeal. We do not interpret any version of Code § 13.1-721 or the effect of the 2019 amendments. We merely affirm the circuit court’s judgment based on the issue and arguments as they were presented below and on appeal. -9-