Zachary Cruz v. Lindsay Combs, In her Individual Capacity ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and AtLee
UNPUBLISHED
Argued at Lexington, Virginia
ZACHARY CRUZ
MEMORANDUM OPINION* BY
v. Record No. 1875-22-3 JUDGE RICHARD Y. ATLEE, JR.
NOVEMBER 21, 2023
LINDSAY COMBS,
IN HER INDIVIDUAL CAPACITY
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
W. Chapman Goodwin, Judge
Peter Thos. Hansen (Amina Matheny-Willard; Peter Thos. Hansen,
P.C.; Amina Matheny-Willard, PLLC, on briefs), for appellant.
(Brian J. Brydges; Johnson, Ayers & Matthews, P.L.C., on brief), for
appellee. Appellee submitting on brief.
Zachary Cruz appeals the circuit court’s order granting Lindsay Combs’s motion for
sanctions, ordering Cruz to pay $17,344.1 Cruz also appeals the circuit court’s order denying his
motion to recuse the presiding judge. We find that Cruz waived his arguments on sanctions and that
his argument regarding recusal is moot, and we therefore affirm.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
On brief, Combs concedes and “does not oppose” reversal on the assigned errors
addressing sanctions. We need not reach the issue of whether this Court should accept those
concessions, however, because we find that the transcripts, which were not timely filed, are
indispensable to the resolution of this appeal.
I. BACKGROUND
Combs is a supervisor of the Adult Protective Services unit of Shenandoah Valley Social
Services. Cruz2 filed a complaint against Combs in her individual capacity, alleging that Combs
harassed him and his guardians with an improper and frivolous investigation constituting an abuse
of process. In the complaint, Cruz alleged that Combs “ma[d]e a court filing” permitting forced
entry into his residence in the course of her investigation. Cruz asserted that Combs knowingly lied
about there being a “joint investigation” with the FBI in that filing.
Combs responded to the suit with a motion to dismiss and a motion craving oyer, requesting
that Cruz provide the court filing referenced in his complaint. On the morning of the scheduled
hearing on the motion to dismiss and motion craving oyer, Cruz filed a motion to recuse the
presiding judge, asserting that he could not be impartial in Cruz’s suit because he authorized a
relevant search warrant that was allegedly used to harass Cruz.
After hearing arguments on the motions, the circuit court issued a letter opinion denying
Cruz’s motion to recuse and granting Combs’s motion craving oyer. The circuit court issued an
order requiring Cruz to file with the circuit court a “true, accurate and complete copy” of the court
filing Cruz referenced in his complaint and to provide Combs with the same.
Combs later filed a motion to dismiss and a motion for sanctions against Cruz for his failure
to comply with the order requiring him to file the court filing and give her a copy of it. At the
2
The initial complaint included Micheal Donovan, Richard Moore, and their adopted son
Samuel Orlando, as co-plaintiffs. Donovan and Moore are married and run Nexus Services, a
bond servicing company. Cruz moved in with the family in 2018, which eventually led to
Combs’s investigation into whether the couple was financially exploiting Cruz.
In the same letter opinion granting the motion craving oyer and denying the motion to
recuse, the circuit court granted Combs’s motion to remove all plaintiffs but Cruz, finding that
each party had “distinct and independent claims to relief” with respect to their action against
Combs, and thus it concluded that they each must file individual suits. See Va. Hot Springs Co.
v. Hoover, 143 Va. 460, 465 (1925) (explaining that “several complainants having distinct and
independent claims to relief against a defendant cannot join in a suit for separate relief in each”).
As such, Cruz is the only remaining plaintiff.
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hearing, Cruz voluntarily nonsuited his case before the motion to dismiss could be argued. After
granting Cruz’s motion for nonsuit, the circuit court heard argument on Combs’s motion for
sanctions against Cruz. On October 3, 2022, the circuit court granted the motion for sanctions and
directed Combs to submit evidence of attorney fees and expenses.
Cruz filed a motion to reconsider the order of sanctions, which the circuit court denied. The
circuit court entered a final order granting sanctions for Combs against Cruz for $17,344, the cost of
Combs’s attorney fees and costs. This appeal followed.
II. ANALYSIS
A. Sanctions
Cruz first argues that the circuit court erred in ordering him to pay sanctions. Cruz breaks
this general argument into four separate assigned errors. Specifically, Cruz claims that the
circuit court erred: (1) “in finding [Cruz] violated Virginia Code Section 8.01-271.1 without
finding plaintiff signed any paper or pleading”; (2) “in finding [Cruz] could violate Virginia
Code Section 8.01-271.1 where there was a good faith belief of merit”; (3) “in Sanctioning
[Cruz] for the entire cost of litigation”; and (4) “in issuing sanctions subsequent to granting
[Cruz]’s nonsuit.” Cruz’s brief zigzags between these, and other tangentially related, arguments.
We find that the transcripts, which were not timely filed, are indispensable to reviewing Cruz’s
arguments on appeal, and the record before us fails to show that he raised the arguments he
makes on appeal before the circuit court.
1. Standard of review
“[O]n appeal the judgment of the lower court is presumed to be correct and the burden is
on the appellant to present to us a sufficient record from which we can determine whether the
lower court has erred in the respect complained of.” Justis v. Young, 202 Va. 631, 632 (1961).
“If the appellant fails to do this, the judgment will be affirmed.” Id.-3-
2. The transcripts are indispensable to this appeal
Rule 5A:8(a) requires that for a transcript to be part of the record on appeal, it must be
“filed in the office of the clerk of the trial court no later than 60 days after entry of the final
judgment.” “This deadline may be extended by a judge of this Court only upon a written motion
filed within 90 days after the entry of final judgment. Timely motions will be granted only upon
a showing of good cause to excuse the delay.” Id. Alternatively, an appellant may submit a
written statement of facts in lieu of a transcript in compliance with Rule 5A:8(c). If 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).
Here, the circuit court entered the final order on October 3, 2022. As such, transcripts
were due on December 2, 2022. Rule 5A:8(a). Cruz did not ask this Court for an extension of
time to file the transcripts. Cruz filed the transcript of the March 25, 2022 hearing on December
20, 2022, and the transcript of the August 1, 2022 hearing on December 21, 2022. Both
transcripts were not timely; therefore, we do not consider them.
3. The record before this Court fails to show that Cruz preserved his arguments
The written pleadings in this case do not show that Cruz raised the arguments he now
asserts on appeal. “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. “Rule 5A:18
requires a litigant to articulate an objection with specificity ‘so that the trial judge . . . know[s]
the particular point being made in time to do something about it.’” Hicks v. Commonwealth, 71
Va. App. 255, 266 (2019) (alterations in original) (quoting Thomas v. Commonwealth, 44
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Va. App. 741, 750, adopted upon reh’g en banc, 45 Va. App. 811 (2005)). While there are
exceptions to this rule, none were raised in this appeal.
We have no insight, beyond conjecture, as to why the circuit court sanctioned Cruz.
Combs’s motion for sanctions focuses on Cruz’s failure to comply with the court order, but the
circuit court did not include its reasoning in its written orders, citing only what was said from the
bench at the hearings. Specifically, in the order granting the motion for sanctions, the circuit
court wrote it “is of the opinion and concludes that the defendant’s Motion [for Sanctions]
should be granted, for the reasons stated into the record during the hearing.” (Emphasis added.)
In the order denying Cruz’s motion to reconsider sanctions, it wrote that its “prior ruling,
granting the defendant’s Motion for Sanctions made from the bench at the conclusion of the
August 1, 2022, hearing, shall be, and it hereby is, confirmed.” (Emphasis added.) Without
timely-filed transcripts, we cannot know what the circuit court’s reasoning was for issuing and
upholding the sanctions.
Furthermore, we see no overlap in the arguments made in the record before us, primarily
Cruz’s motion to reconsider sanctions, and his arguments on brief. Addressing his arguments in
order, first, there is no indication that Cruz was sanctioned for a violation of Code § 8.01-271.1.
That code section, broadly speaking, concerns the signing of pleadings and there being a good
faith basis for filing a pleading (as opposed, for example, it being for an “improper purpose, such
as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Code
§ 8.01-271.1(B)). Combs’s motion for sanctions, which the circuit court granted, argued that
sanctions were appropriate because of Cruz’s failure to comply with the court’s order; it did not
allege a violation of, or even cite, Code § 8.01-271.1. Second, Cruz made no argument that,
assuming sanctions were appropriate, he ought to be responsible for a portion of, as opposed to
“the entire cost,” of Combs’s expenses in litigating the case. Finally, he made no argument
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about the timing of the sanctions, instead arguing why sanctions were “unjust” and intended to
“punish him for speaking out against government corruption in Augusta County,” particularly
because he purportedly provided the court filing at issue to counsel in person during the hearing
(prior to the circuit court entering the order directing Cruz to file it). Given that there is no
overlap between Cruz’s arguments in the record and on brief to this Court, we find he has waived
them on appeal. Rule 5A:18.
Simply stated, the record before us is insufficient for this Court to consider Cruz’s
arguments on sanctions, as we have no basis to determine what arguments may have been advanced
in the circuit court, and, if they were raised, how the court ruled upon them. Nor do his arguments
in the record before us match those made on appeal. Accordingly, we affirm the circuit court’s
ruling on sanctions.
B. Recusal
Cruz also argues that the circuit court abused its discretion in denying his motion for
recusal.
1. Standard of review
“A judge must recuse himself or herself in a proceeding in which the judge’s impartiality
might reasonably be questioned, including but not limited to instances where . . . the judge is
cognizant of a personal bias or prejudice concerning . . . a party[.]” Canons of Judicial Conduct
1(D)(1)(a). “[I]n making the recusal decision, the judge must be guided not only by the true state
of his impartiality, but also by the public perception of his fairness, in order that public
confidence in the integrity of the judiciary may be maintained.” Prieto v. Commonwealth, 283
Va. 149, 163 (2012) (quoting Wilson v. Commonwealth, 272 Va. 19, 28 (2006)). The party
seeking recusal bears the burden of proving the judge’s bias or prejudice. Id. This Court
reviews recusal decisions for an abuse of discretion. Id.-6-
2. Cruz’s nonsuit rendered this argument moot
After the circuit court denied his motion to recuse, and when facing a motion to dismiss,
Cruz voluntarily nonsuited his case. Code § 8.01-380 permits plaintiffs to voluntarily dismiss
their cases without prejudice once “as a matter of right.” Code § 8.01-380(B). The circuit court
here granted Cruz’s motion for nonsuit, as required by statute. Id.
“A question is moot when ‘the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome.’” Godlove v. Rothstein, 300 Va. 437, 439 (2022)
(quoting Bd. of Supervisors v. Ratcliff, 298 Va. 622, 622 (2020)). “The issues presented must be
‘live’ at all stages of review.” Bristol Dep’t of Soc. Servs. v. Welch, 64 Va. App. 34, 42 (2014)
(quoting Baldwin v. Commonwealth, 43 Va. App. 415, 421 (2004)). “Courts are not constituted
. . . to render advisory opinions, to decide moot questions or to answer inquiries which are
merely speculative.” Id. (alteration in original) (quoting Baldwin, 43 Va. App. at 421). This
Court does not “give opinions on moot questions or abstract matters, but only to decide actual
controversies injuriously affecting the rights of some party to the litigation.” Id. (quoting
Baldwin, 43 Va. App. at 421). “Where there is no actual controversy, the case will be dismissed
as moot.” Id. at 42-43.
As a result of the nonsuit, there was no longer an “actual controversy” before the circuit
court. Id. at 42. Although Cruz argues that the trial judge’s refusal to recuse himself resulted in
his nonsuit, it was ultimately Cruz’s choice to dismiss his own case; thus, any claim about the
recusal was no longer an actual controversy. Accordingly, Cruz voluntarily rendered his case no
longer “live.” Thus, any objection to the circuit court’s decision on recusal is moot, and we do
not consider it on appeal.
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III. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s judgment.
Affirmed.
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