Perfect Landscape, LLC v. Nader P. Mansour

• Court: Court of Appeals of Virginia
• Decided: August 22, 2023
• Docket: 0248234
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Raphael and Callins UNPUBLISHED

PERFECT LANDSCAPES, LLC MEMORANDUM OPINION* v. Record No. 0248-23-4 PER CURIAM AUGUST 22, 2023 NADER P. MANSOUR

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Christie A. Leary, Judge

(Debra Fitzgerald O’Connell; The Fitzgerald Law Group, PLC, on briefs), for appellant.

(Warner F. Young III; Mahdavi, Bacon, Halfhill & Young, P.L.L.C., on brief), for appellee.

Perfect Landscapes, LLC, appeals the Circuit Court of Fairfax County’s order granting

Nader P. Mansour’s plea in bar and dismissing Perfect Landscapes’ claim against Mansour as

barred by the doctrine of res judicata. After examining the briefs and record, the panel

unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.”

Code § 17.1-403(ii)(a); Rule 5A:27(a). Perfect Landscapes failed to timely file a transcript or

written statement of facts in lieu of a transcript for the November 18, 2022 hearing at which the

circuit court heard argument from the parties on Mansour’s plea in bar. Because we conclude that

a transcript or written statement of facts in lieu of a transcript is “necessary to permit resolution” of

the issues Perfect Landscapes raises, we decline to consider Perfect Landscapes’ assignments of

error, and we affirm the circuit court’s final order. Rule 5A:8(b)(4)(ii).

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

The history of this case includes two general district court actions that preceded the

circuit court action now on appeal to this Court. On April 1, 2013, Perfect Landscapes and

Mansour entered a continuous service agreement, under which Perfect Landscapes provided

Mansour with lawn mowing services from approximately April 2013 to September 2017. In

March 2019, Perfect Landscapes filed a warrant in debt in Fairfax County General District Court

seeking to recover $374 for Mansour’s failure to pay an invoice for lawn mowing services, plus

costs and attorney fees pursuant to the agreement. Mansour filed a counterclaim seeking damages

for breaches of the agreement. Both parties non-suited their claims.

Mansour then filed a new warrant in debt and a bill of particulars in the general district court

seeking damages of $10,748.58 (the “second general district court action”). In the bill of

particulars, Mansour alleged in one paragraph that he and Perfect Landscapes entered a contract

“[o]n or about April 1, 2013,” but alleged in four other paragraphs that Perfect Landscapes had

breached an “April 10, 2013” agreement.

Perfect Landscapes filed a plea in bar and answer and grounds of defense. In the plea in bar,

Perfect Landscapes argued that the general district court should dismiss the warrant in debt because

(1) Mansour had alleged breaches of a non-existent “April 10, 2013 Agreement” and failed to

provide any evidence of such an agreement, and (2) Mansour’s claim was barred by the five-year

statute of limitations prescribed by Code § 8.01-246(2) whether or not it arose from an April 1 or

April 10, 2013 agreement. Perfect Landscapes also requested an award of attorney fees and costs

“in accord with the Paragraph titled ‘Miscellaneous’ on page 3 of the April 1, 2013 Agreement.”

At a hearing on April 14, 2021, the general district court heard argument on Perfect

Landscapes’ plea in bar and dismissed Mansour’s claims but did not award Perfect Landscapes

attorney fees or costs. In its complaint to the circuit court, Perfect Landscapes alleged that the

-2- general district court’s dismissal was “with prejudice,” and in its final order, the circuit court

concluded the general district court’s April 14, 2021 dismissal was “with prejudice.”1

Perfect Landscapes began the present action by filing a complaint in the Fairfax County

Circuit Court seeking to enforce an “April 1, 2013 Lawn Mowing Agreement” between Mansour

and Perfect Landscapes. Perfect Landscapes seeks to recover costs and attorney fees arising from

the second general district court action, in the amount of $30,000, because it “prevailed” in the

dispute. Perfect Landscapes attached to its complaint (1) a copy of a “Lawn Mowing Agreement”

dated April 1, 2013, (2) a copy of the bill of particulars Mansour filed in the second general district

court action, and (3) a printout from the General District Court Online Case Information System

website showing that the second general district court action was “dismissed.”

Mansour filed a motion craving oyer, requesting that Perfect Landscapes produce “the

entirety of the record” in the underlying action. The circuit court granted the motion and ordered

Perfect Landscapes to file the plea in bar and the answer and grounds of defense it had filed in the

second general district court action.

Mansour then filed a plea in bar, arguing that Perfect Landscapes’ claim for attorney fees is

barred under the principle of res judicata due to the final judgment rendered by the general district

court. Mansour argued that Perfect Landscapes had requested attorney fees from the general district

court under the same April 1, 2013 agreement on which it based its circuit court claim, and the

general district court did not grant the attorney fee award. Mansour further argued that res judicata

would bar Perfect Landscapes’ claim even if it had not requested attorney fees in the earlier

proceeding, as the claim was available for Perfect Landscapes to make, and “through reasonable

diligence, should have been raised” in that proceeding.

1 The record on appeal does not contain a transcript of the general district court hearing or otherwise memorialize the general district court’s findings. -3- Perfect Landscapes argued in response that the general district court’s judgment did not

constitute a “final judgment on the merits” with respect to the claim for attorney fees, as required to

support a finding of res judicata. According to Perfect Landscapes, the general district court “upon

consideration of the . . . pretrial pleadings and . . . oral argument in support of those documents,

granted Perfect Landscapes’ Plea in Bar, dismissed the case, and terminated the proceeding without

the taking any evidence on any other issues, including, but not limited to, the merits of Mansour’s

claims.” Perfect Landscapes thus argued that the general district court ruling was not a “final

judgment on the merits” because it was based on a plea in bar.

The circuit court conducted a hearing in connection with Mansour’s plea in bar on

November 18, 2022, and issued a final order the same day granting the plea in bar and dismissing

Perfect Landscapes’ claim with prejudice. The circuit court concluded that “[t]he dismissal of the

GDC [a]ction is final and constitutes an adjudication on the merits of Perfect Landscapes[’] request

for attorney[] fees under the terms of the [April 1, 2013 Lawn Mowing] Agreement.” Perfect

Landscapes appeals.

Perfect Landscapes failed to timely file a transcript or a written statement of facts in lieu

of a transcript for the November 18, 2022 hearing. Perfect Landscapes filed two motions to

approve a written statement of facts in lieu of a transcript in the circuit court—one on January

24, 2023, and one on January 25, 2023. The circuit court denied the motions, noting that the

deadline to file the written statement of facts was January 17, 2023, that Perfect Landscapes had

not requested an extension of time to file, and that the deadline to file a transcript or written

statement of facts in lieu of a transcript was “mandatory and jurisdictional,” so the circuit court

“ha[d] no authority to sign and certify [Perfect Landscapes’] Written Statement.” Perfect

Landscapes did not file any motion with this Court requesting an extension of the deadline. See

-4- Rule 5A:8(a). The record therefore does not include a transcript or written statement of facts in

lieu of a transcript for the November 18, 2022 hearing. Id.

ANALYSIS

On appeal, Perfect Landscapes argues that the circuit court erred by finding Perfect

Landscapes’ attorney fee claim barred by res judicata. Perfect Landscapes’ failure to timely file a

transcript or written statement of facts in lieu of a transcript for the November 18, 2022 circuit court

hearing, however, prevents this Court from considering Perfect Landscapes’ arguments on appeal.

“When the appellant fails to ensure that the record contains transcripts or a written statement of

facts necessary to permit resolution of appellate issues, any assignments of error affected by such

omission will not be considered.” Rule 5A:8(b)(4)(ii). “If . . . the transcript is indispensable to

the determination of the case, then the requirements for making the transcript a part of the record

on appeal must be strictly adhered to. This Court has no authority to make exceptions to the

filing requirements set out in the Rules.” Shiembob v. Shiembob, 55 Va. App. 234, 246 (2009)

(alteration in original) (quoting Turner v. Commonwealth, 2 Va. App. 96, 99 (1986)); see also

Bay v. Commonwealth, 60 Va. App. 520, 528-29 (2012).

While the Court will not consider the merits of Perfect Landscapes’ arguments on appeal, an

overview of the arguments and legal background is necessary to explain why a transcript or written

statement of facts in lieu of a transcript is “necessary to permit resolution of appellate issues” in

this case. Rule 5A:8(b)(4)(ii). “Res judicata involves both issue and claim preclusion.” Funny

Guy, LLC v. Lecego, LLC, 293 Va. 135, 142 (2017). “Both of these preclusive effects, while

distinguishable, require the party asserting res judicata as a defense to show by a preponderance

of the evidence that the claim or issue should be precluded by a prior judgment.” D’Ambrosio v.

Wolf, 295 Va. 48, 53 (2018). “In the Commonwealth, claim preclusion is encompassed by Rule

1:6.” Id. That rule provides, in relevant part:

-5- A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, is forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. A claim for relief pursuant to this rule includes those set forth in a complaint, counterclaim, cross-claim or third-party pleading.

Rule 1:6(a).

Under Rule 1:6, “a final judgment forecloses ‘successive litigation of the very same

claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’”

D’Ambrosio, 295 Va. at 54 (quoting Lee v. Spoden, 290 Va. 235, 245 (2015)). In other words,

“parties may not ‘relitigat[e] . . . the same cause of action, or any part thereof which could have

been litigated’ in the previous action.” Id. (alterations in original) (quoting Bates v. Devers, 214

Va. 667, 670 (1974)). “Whether a claim or issue is precluded by a prior judgment is a question

of law this Court reviews de novo.” Lane v. Bayview Loan Servicing, LLC, 297 Va. 645, 653

(2019).

Perfect Landscapes argues the circuit court’s finding of res judicata is erroneous on two

grounds. First, Perfect Landscapes argues that the general district court did not render a final

judgment “on the merits” of the attorney fee claim because the general district court dismissed

Mansour’s claim based on Perfect Landscapes’ plea in bar, did not receive any evidence at the April

14, 2021 hearing, and did not consider Perfect Landscapes’ claim for attorney fees. Second, Perfect

Landscapes argues that because Mansour based his general district court action on a non-existent

April 10, 2013 agreement, Mansour’s claim did not arise from the same “transaction or occurrence”

as Perfect Landscapes’ claim, which arises from the April 1, 2013 agreement.

-6- With respect to Perfect Landscapes’ first argument, we conclude that a transcript or written

statement of facts in lieu of a transcript is “necessary to permit resolution” of the issue’s merits, and

therefore this argument will not be considered. Rule 5A:8(b)(4)(ii). As “the party asserting res

judicata as a defense,” Mansour bore the burden of proving to the circuit court “by a

preponderance of the evidence that [Perfect Landscapes’] claim . . . should be precluded by [the]

prior judgment.” D’Ambrosio, 295 Va. at 53. Perfect Landscapes argues that the circuit court’s

conclusion that Mansour met this burden was erroneous because Mansour failed to prove that the

general district court’s dismissal of Mansour’s claim was a final judgment “on the merits” of

Perfect Landscapes’ attorney fee claim.

“On appeal, we presume the judgment of the trial court is correct and the burden is on the

appellant to present to us a sufficient record from which we can determine whether the trial court

has erred” as the appellant alleges. Bay, 60 Va. App. at 528. Without an adequate record, “we

will not consider the point.” Dixon v. Dixon, 71 Va. App. 709, 716 (2020) (quoting Robinson v.

Robinson, 50 Va. App. 189, 197 (2007)). In this case, the lack of a complete record prevents us

from being able to determine whether the circuit court correctly concluded that Perfect

Landscapes’ claim is barred by res judicata.

This problem affects several issues in the case. For example, although the circuit court

concluded in its final order that Mansour’s general district court action was dismissed “with

prejudice,” the record presented on appeal does not include any evidence proving that

conclusion. Nor does the record on appeal include any document supporting the conclusion that

the general district court’s decision was based on Perfect Landscapes’ plea in bar rather than

some other reason. Moreover, if the general district court’s decision was based on Perfect

Landscapes’ plea in bar, the record on appeal does not demonstrate whether the general district

court agreed with Perfect Landscapes’ first argument (regarding the mistaken date in Mansour’s

-7- bill of particulars) or second argument (regarding the statute of limitations). All these issues are

relevant to determining whether res judicata applies. Compare Alexander v. Cobb, 298 Va. 380,

389 (2020) (holding dismissal based on a plea in bar was a final judgment “on the merits”), and

Lambert v. Javed, 273 Va. 307, 310 (2007) (holding dismissal based on plea in bar was a final

judgment “on the merits”), with Hughes v. Doe, 273 Va. 45, 49 (2007) (holding dismissal based on

plea in bar was not a final judgment “on the merits”).

Without a transcript or written statement of facts from the November 18, 2022 hearing,

we cannot know what evidence and arguments related to these issues, if any, the parties

presented to the circuit court and we cannot evaluate Perfect Landscapes’ appeal.

With respect to Perfect Landscapes’ second argument, there is no evidence in the record

that Perfect Landscapes made this argument to the circuit court. “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 . . . .” Rule 5A:18. Perfect Landscapes may have made this argument at

the November 18, 2022 hearing, but without a transcript or written statement of facts in lieu of a

transcript, it is impossible for this Court to know. The record is insufficient to determine

whether Perfect Landscapes preserved its second argument, and therefore we will not consider

that argument. Rule 5A:8(b)(4)(ii).

We cannot determine whether the circuit court erred in concluding that Perfect Landscapes’

attorney fee claim was barred. A transcript or written statement of facts is “necessary to permit

resolution” of the issue Perfect Landscapes raises, thus we cannot consider Perfect Landscapes’

assignments of error. Rule 5A:8(b)(4)(ii); Shiembob, 55 Va. App. at 246.

CONCLUSION

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

Affirmed.

-8-