Janett Depaz v.The Council of Co-Owners of the Westerlies Condominium Association ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Huff and AtLee
JANETT DEPAZ
MEMORANDUM OPINION*
v. Record No. 0228-22-4 PER CURIAM
OCTOBER 25, 2022
THE COUNCIL OF CO-OWNERS OF THE
WESTERLIES CONDOMINIUM ASSOCIATION
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas P. Mann, Judge
(Janett Depaz, on briefs), pro se.
(Matthew J. Hundley; Stewart R. Pollock; Elias G.
Saboura-Polkovotsy; Moran Reeves & Conn PC; Saboura,
Goldman & Colombo, P.C., on brief), for appellee.
Janett Depaz, pro se, appeals from a judgment of the circuit court granting a plea in bar and
dismissing her complaint because the statute of limitations had expired. On appeal, Depaz
challenges the circuit court’s determination that her cause of action accrued in 2011.1 After
examining the briefs and record in this case, 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).
Because Depaz failed to timely file transcripts or a statement of facts, and a transcript or statement
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Depaz also assigns error to the circuit court’s failure to “consider the timely submitted
non-suit case filed in the General District Court.” Her argument in support of this assignment of
error, however, “does not address the findings, rulings, or failures to rule on issues in the trial
court or other tribunal from which an appeal is taken.” Rule 5A:20(c)(2). Instead, she focuses
on the general district court’s rulings and her explanation for her actions. Because she fails to
address the circuit court’s rulings, this assignment of error is insufficient, and we do not consider
it. See Jay v. Commonwealth, 275 Va. 510, 520 (2008) (detailing actions the Court may take
when a brief fails to meet the requirements of 5A:20).
of facts is indispensable to resolving Depaz’s assignments of error, we affirm the judgment of the
circuit court. Rule 5A:8.
I. BACKGROUND2
Under familiar appellate principles, we defer to the circuit court’s factual findings and
state the facts in the light most favorable to the Council, the prevailing party below. Koons v.
Crane, 72 Va. App. 720, 732 (2021).
Depaz filed a complaint against the Council of Co-Owners of the Westerlies Condominium
Association (the “Council”) and took a voluntary nonsuit on March 5, 2021. On October 5, 2021,
Depaz filed a second complaint against the Council, alleging that it had failed to maintain “common
elements,” as required by the condominium instruments, thereby violating the Virginia
Condominium Act, Code § 55.1-1915.3 The complaint further alleged that the failure to maintain
those “common elements” caused water intrusion that damaged her units, referred to in the
complaint as Units 1800 and 1806.
On November 1, 2021, the Council filed a plea in bar, alleging that the statute of limitations
had expired because the claims raised in Depaz’s complaint accrued in 2011.4 The Council asserted
that “contemporaneous communications between the parties,” to which Depaz’s complaint referred,
demonstrated that water intrusion into Depaz’s units began in 2011. In her brief opposing the plea
in bar, Depaz denied that there was water intrusion in 2011 and asserted that there had been none in
2
We deny Depaz’s motions to include in the record documents she received in response to
subpoenas after the circuit court’s order on the plea in bar. “Where no evidence is taken in support
of the plea, the trial court, and the appellate court upon review, must rely solely upon the pleadings
in resolving the issue presented.” Robinson, Tr. for Jane Washburn Robinson Living Tr. v.
Nordquist, 297 Va. 503, 513-14 (2019) (quoting Tomlin v. McKenzie, 251 Va. 478, 480 (1996)).
3
Depaz’s complaint alleged a violation of Code § 55-79.53, which was repealed and
reenacted as Code § 55.1-1915 in 2019. 2019 Va. Acts ch. 712.
4
The Council also filed a demurrer, which the circuit court denied on January 7, 2022.
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Unit 1800 “prior to 2016” or in Unit 1806 “prior to July 2018.” Depaz also argued that even if the
circuit court found that water intrusion had occurred in 2011, that finding “would not bar the present
claims.”
After a hearing on December 10, 2021, the circuit court granted the Council’s motion
craving oyer as to certain documents referenced in the complaint.5 The documents thereby
incorporated into the complaint included the condominium’s master deed, the bylaws dated October
7, 1971, and December 22, 2018, a management agreement between Community Association
Management Professionals and the Council, three mold and water damage claims Depaz allegedly
submitted to the Association, and a “Inlogix Hygienist report.” Among the documents related to the
claims Depaz had submitted was a June 16, 2016 email from Depaz in which she referred to work
on both Units 1800 and 1806 that had been performed in June 2011. A July 5, 2016 email from
Depaz to the Council and Community Association Management Professionals referred to work done
regarding water incursion “into my units 1806 and 1800 and the hardship I underwent from June to
November 2011.”
After a hearing on January 14, 2022, the circuit court found that Depaz’s cause of action
accrued in 2011. Further, the circuit court found that, even had the cause of action accrued in 2016,
Depaz waited too long to refile her complaint after the nonsuit. Accordingly, by order entered
January 14, 2022, the circuit court granted the Council’s plea in bar and dismissed Depaz’s
complaint with prejudice. Depaz moved for reconsideration, arguing that she had “found evidence”
that the Council “cherry pick[ed] lines from emails” to make it seem as though Depaz’s units had
experienced water intrusion in 2011. The circuit court denied Depaz’s motion for reconsideration.
Depaz appeals.
5
Judge Robert J. Smith presided over the hearings on the demurrer and motion craving
oyer, while Judge Mann ruled over the plea in bar appealed here.
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II. ANALYSIS
On appeal, Depaz argues that the circuit court erred in determining that her cause of action
accrued in 2011. She contends that her two units were “distinct” and her cause of action for each
unit “accrued separately and at different specific events.”6 Further, she argues, each unit “had
different causes of action that started at different intervals” and thus were episodic, rather than
continuous, in nature. Depaz also contends that the circuit court erred by “holding that Code
§ 8.01-246(2), the five-year statute of limitations governing actions on several
restitution/reimbursement agreements and actions ex-contractu commencing for [Unit] 1806 in July
2018, barred this contract action in its entirety.”
A. Standard of Review
An appeal from a circuit court’s decision granting a plea in bar of the statute of limitations
presents a “question of law that we review de novo.” Robinson, Tr. for Jane Washburn Robinson
Living Tr. v. Nordquist, 297 Va. 503, 513 (2019) (quoting Van Dam v. Gay, 280 Va. 457, 460
(2010)).
B. No Timely-Filed Transcript or Statement of Facts
“The transcript of any proceeding is a part of the record when it is filed in the office of the
clerk of the trial court no later than 60 days after entry of the final judgment.” Rule 5A:8(a).
“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).
Depaz did not file a transcript, or a written statement of facts in lieu of a transcript, of the
January 14, 2022 hearing. The circuit court’s January 14, 2022 order granted the plea in bar and
6
On brief, Depaz concedes that “the statute of limitations expired for Unit 1800, because
she discovered the water infiltration issue with the backwall of Unit 1800 in 2016.”
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dismissed Depaz’s complaint based upon the circuit court’s findings that Depaz’s cause of action
accrued in 2011 and she did not file her complaint within the five-year limitations period. Without a
transcript of the January 14, 2022 hearing, the record does not contain the arguments Depaz
presented to the circuit court, the basis upon which the circuit court made its findings, or the reasons
given by the circuit court for its ruling.7 We are therefore unable to determine whether the circuit
court erred. Specifically, we cannot determine the basis for the circuit court’s findings that Depaz’s
cause of action accrued in 2011 or whether the circuit court found that the water intrusions were
continuous rather than occurring in episodes, as Depaz alleges.
Accordingly, after reviewing the record and the briefs filed on appeal, we conclude that a
timely-filed transcript or written statement of facts in lieu of a transcript of the January 14, 2022
hearing is indispensable to resolve Depaz’s assignments of error. See Smith v. Commonwealth, 281
Va. 464, 469 (2011) (noting cases where “the failure to file an indispensable transcript resulted in
waiver of the issue associated with the transcript”). Because Depaz failed to ensure that the record
contains the necessary transcript or written statement of facts, we cannot reach her assignments of
error.8 See Rule 5A:8(b)(4)(ii).
7
With no record of the arguments Depaz made or the positions she took (or possibly
abandoned) at the January 14, 2022 hearing, we cannot know that Depaz presented the specific
argument she advances on appeal to the circuit court or whether her appellate argument
repudiates a position that she may have taken in the circuit court. See Rule 5A:18 (an appellate
court will only consider arguments that timely were raised in the trial court); Nelson v.
Commonwealth, 71 Va. App. 397, 403 (2020) (recognizing that a party may not take inconsistent
positions during the course of litigation).
8
A pro se litigant “is no less bound by the rules of procedure and substantive law than a
defendant represented by counsel.” Townes v. Commonwealth, 234 Va. 307, 319 (1987); see
also Francis v. Francis, 30 Va. App. 584, 591 (1999) (“Even pro se litigants must comply with
the rules of court.”).
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III. CONCLUSION
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
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