Riordan Limited v. Irina Novitzky ( 2024 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Malveaux, Friedman and Lorish
Argued at Alexandria, Virginia
RIORDAN LIMITED, ET AL.
MEMORANDUM OPINION* BY
v. Record No. 0955-23-4 JUDGE MARY BENNETT MALVEAUX
NOVEMBER 26, 2024
IRINA NOVITZKY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
John M. Tran, Judge
David H. Dickieson (Tara N. Tighe; Schertler Onorato, Mead &
Sears, on briefs), for appellants.
George R.A. Doumar (Raj H. Patel; Craig Franco; Mahdavi Bacon
Halfhill & Young, PLLC; Odin Feldman & Pittleman, P.C., on
brief), for appellees.
Riordan Limited, Autonomy Global Opportunities Master Fund, L.P., and Robert Gibbins
(collectively, the “Gibbins parties”) appeal the circuit court’s final order dismissing this case on
the grounds of forum non conveniens. On appeal, in ten assignments of error, the Gibbins parties
argue that the circuit court erred in finding that Ukraine was a more convenient forum for this
litigation. Because the Gibbins parties failed to timely file transcripts for certain hearings and also
failed to provide argument and legal authority for certain assignments of error, we affirm the circuit
court’s judgment.
BACKGROUND
Gibbins is a citizen of the United Kingdom and Canada, and a resident of Switzerland.
Riordan and Autonomy Global are corporate entities through which Gibbins manages his
*
This opinion is not designated for publication. See Code § 17.1-413(A).
investments and personal funds. Riordan is incorporated in Cyprus, and Autonomy Global is
registered in the Cayman Islands. Irina and Victor Novitzky, a married couple, are Ukrainian
citizens and former residents of Ukraine, and current residents of Fairfax County, Virginia. The
Novitzkys have conducted business on behalf of Gallois Invest, an asset management company
registered in Ukraine, in various capacities. Irina Novitzky is a “director general” of Gallois
Invest.
The dispute here involves two large real estate development projects in Ukraine, one
located in the city of Kyiv, the other in the city of Mykolaiv. The Gibbins parties allege that the
Novitzkys and Gallois Invest (collectively, the “Novitzky parties”) induced them to invest in the
projects, or to invest in entities that invested in the projects, and then mismanaged or
misappropriated the funds, causing the Gibbins parties to lose millions of dollars. With respect
to the Kyiv project, the Gibbins parties asserted claims (against each of the Novitzky parties,
unless otherwise noted) for breach of fiduciary duty, fraud, fraud in the inducement, constructive
fraud, common law and statutory conspiracy, unjust enrichment, conversion, tortious interference
with business expectancy (against Irina and Gallois), alter ego liability (against Victor), and
accounting. With respect to the Mykolaiv project, the Gibbins parties asserted claims for breach
of fiduciary duty, common law and statutory conspiracy, unjust enrichment, conversion, tortious
interference with business expectancy (against Irina and Gallois), alter ego liability (against
Victor), and accounting.
The Gibbins parties filed a complaint in November 2020, alleging claims related only to
the Kyiv project. The Novitzky parties moved the circuit court to dismiss the case for forum non
conveniens under Code § 8.01-265, arguing that Ukraine is a more convenient forum for the case
than Virginia. After hearing argument from the parties, the circuit court issued a letter opinion
on March 1, 2021, analyzing the forum non conveniens issue but taking the motion “under
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advisement until the record is further developed.” The parties engaged in discovery limited to
the issue of forum non conveniens and submitted further briefing on that issue.
In June 2021, the Gibbins parties filed a first amended complaint adding the claims
relating to the Mykolaiv project and new claims relating to the Kyiv project. The circuit court
held an evidentiary hearing on September 2, 2021, at which it received evidence from the parties
on the motion to dismiss. The circuit court issued a letter opinion on September 17, 2021,
concluding that good cause existed to dismiss the case for forum non conveniens.
The Gibbins parties then moved the circuit court to stay rather than dismiss the case. The
circuit court granted the motion, noting, “[t]he decision to enter an Order of Stay rather than an
Order dismissing the case arises from the unaddressed concerns that Va[.] Sup. Ct. Rule 1:1 does
not allow for an ended case to be reinstated.” The circuit court entered an order on November
18, 2021, staying the case upon certain conditions, among them the Novitzky parties’ agreement
not to raise certain defenses in the Ukrainian litigation, and ordering the Gibbins parties to
“prosecute their claims [in Ukraine] in a reasonably prompt manner.”
On February 24, 2022, Russia invaded Ukraine. The Gibbins parties, who had not yet
filed any claim in Ukraine, moved the circuit court to lift the stay so the case could proceed in
Virginia rather than Ukraine.1 The circuit court held a hearing on this motion on April 22, 2022.
In November 2022, the Novitzky parties moved the circuit court to dismiss the matter, arguing
that the circuit court erred by staying rather than dismissing the case in its November 2021 order.
The circuit court held a hearing addressing the motion to lift the stay and motion to dismiss on
December 1, 2022. In a December 1, 2022 order, the circuit court stated that at the hearing, the
parties had argued over how the Gibbins parties would have to litigate their claims in Ukraine.
1
There had been other proceedings in Ukraine involving at least some of the parties to
this dispute, but the Gibbins parties had not filed claims against the Novitzky parties in accord
with the circuit court’s November 2021 order.
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The court ordered additional briefing from the parties on the question of how the Gibbins parties
would have to file their claims in Ukraine.
On January 26, 2023, the circuit court lifted the stay effective February 24, 2023. In its
order, the court noted that, “[i]n hindsight, the [c]ourt erred and should have dismissed the case”
rather than staying it in November 2021. Doing so, the court noted, would have “allow[ed] the
parties to appeal [the court’s] decision to the . . . Court of Appeals and during the ensuing
months be kept informed as to whether it was practicable to bring this litigation to the Ukraine
courts.” The court concluded, nonetheless, that it “cannot correct its prior error by dismissing
the case now.” Taking into consideration “the totality of the facts and circumstances and
weighing the equities,” including the circuit court’s perceived inability to correct its error and the
impact of the war on the Ukrainian court system, the court lifted the stay and allowed the case to
proceed in Virginia.
Gibbins had, in the meantime, filed claims against the Novitzky parties in the Kyiv City
Commercial Court in Ukraine (the “commercial court”) on November 25, 2022.2 On November
30, 2022, the commercial court issued an opinion concluding that Gibbins’s claims were
misjoined because the Kyiv and Mykolaiv projects arose from different factual circumstances.
The commercial court further concluded that Gibbins could proceed against Gallois in Ukraine
but his claims against the Novitzkys should be brought in a United States court because the
Novitzkys are permanent United States residents.
Irina Novitzky appealed that ruling in Ukraine, and that appeal was still pending when
the circuit court lifted the stay of the Virginia proceedings on January 26, 2023. On February 15,
2023, the Ukrainian Northern Commercial Court of Appeals (the “Ukrainian court of appeals”)
2
The record does not reveal why Gibbins alone, rather than all three of the Gibbins
parties, filed claims against the Novitzky parties.
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issued an opinion nullifying the commercial court judgment. The Ukrainian court of appeals
concluded that Gibbins’s claims against the Novitzkys should be heard in Ukraine, as the
Novitzkys are Ukrainian citizens and “[i]t is also obvious that the disputed legal relations arose
on the territory of Ukraine.” The Ukrainian court of appeals further concluded that Gibbins’s
claims against the Novitzkys should be heard in a Ukrainian civil court, rather than a commercial
court.
On February 16, 2023, the Novitzky parties moved the circuit court to reconsider the
January 2023 order lifting the stay and to dismiss the case in accordance with its November 2021
order. They argued that dismissal was appropriate given the new information that had been
presented to the circuit court over the ensuing months, including the decisions by the Ukrainian
courts.3
The circuit court heard argument on the Novitzky parties’ motion on April 28, 2023. The
court entered a final order on May 9, 2023, concluding that it had erred in staying instead of
dismissing the case under Code § 8.01-265 in its November 18, 2021 order. The court dismissed
the case without prejudice subject to certain conditions, including the Novitzky parties’
agreement not to raise certain defenses in the Ukrainian litigation. The Gibbins parties now
appeal the circuit court’s final order.
ANALYSIS
On appeal, the Gibbins parties present ten assignments of error that relate to various
rulings made by the circuit court. Upon review of the record and briefing, we conclude that we
are prevented from reviewing the Gibbins parties’ arguments because certain indispensable
3
While that motion was pending, the Gibbins parties filed a second amended complaint
on March 17, 2023. In the second amended complaint, the Gibbins parties adjusted certain
factual allegations but otherwise pleaded substantially similar claims as in the first amended
complaint.
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transcripts are not part of the record (assignments of error 1, 5, 6, 7, 8, and 9), and because the
Gibbins parties’ opening brief failed to comply with Rule 5A:20(e) (assignments of error 2, 3, 4,
and 10).
I. Indispensable Transcripts
In its final order, the circuit court stated that it based its decision “[u]pon consideration of
the Parties’ extensive briefing in the record, evidence presented at the September 2, 2021,
hearing on [the Novitzky parties’] Motion to Dismiss for Forum Non Conveniens, and argument
of counsel.” It is clear that the circuit court relied on evidence presented at the September 2,
2021 hearing in making its final ruling dismissing the case on the grounds of forum non
conveniens. But a transcript of this hearing was not timely filed.
“The transcript of any proceeding is 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).
The final order in this case was entered on May 9, 2023. Sixty days from May 9, 2023, was
Saturday, July 8, 2023, so the deadline to file the transcripts in this case was Monday, July 10,
2023. See Code § 1-210(B) (“When the last day for performing an act during the course of a
judicial proceeding falls on a Saturday, Sunday, [or] legal holiday . . . the act may be performed
on the next day that is not a Saturday, Sunday, [or] legal holiday.”). On July 27, 2023—79 days
after the circuit court entered its final order—the Gibbins parties filed in the circuit court the
transcript of the September 2, 2021 hearing. The Gibbins parties did not request an extension of
the deadline to file the transcript, and this Court did not enter any order extending the deadline.
See Rule 5A:8(a) (“This deadline [to file a transcript] may be extended by a judge of this Court
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only upon a written motion filed within 90 days after the entry of final judgment.”). Thus, the
September 2, 2021 hearing transcript filed on July 27, 2023, is not part of the record.4
The parties had previously filed parts of the September 2, 2021 transcript as exhibits to
pleadings in the circuit court—specifically, pages 2 to 126 (filed in the circuit court on December
19, 2022, and March 17, 2023), 182 to 185 (filed in the circuit court on December 16, 2022), and
202 to 205 (filed in the circuit court on December 16, 2022). Therefore, those portions of the
transcript of the September 2, 2021 hearing are part of the record.
Those portions of the transcript reflect that at the September 2, 2021 hearing, the
Novitzky parties called at least two witnesses to testify—Oksana Pakhar, a corporate
representative of Gallois, and Irina Paliashvili, an expert in Ukrainian law. The Gibbins parties
called at least one witness—Yevgen Levitskyi, an expert in Ukrainian law. Pages 2 to 126 of the
transcript include the parties’ opening statements, as well as Pakhar’s testimony. Pages 182 to
185 and 202 to 205 are excerpts from Levitskyi’s testimony. None of Paliashvili’s testimony is
included in the record. It is unclear whether any other witnesses testified for either party in the
missing portions of the transcript.
In its September 17, 2021 letter opinion, the circuit court noted that it considered “the
competing expert witnesses offered by the parties” and found “the [Novitzky parties’] expert was
credible, impressive, and persuasive. Additionally, the clarity of her explanations was impactful
4
That same day, July 27, 2023, the Gibbins parties also filed in the circuit court
transcripts of the hearings that occurred on February 19, 2021, April 22, 2022, and December 1,
2022. As they are untimely filed, these transcripts are not part of the record. But the Gibbins
parties had, however, already filed the transcript of the February 19, 2021 hearing as an exhibit
to a brief they filed in the circuit court on August 20, 2021, thus it is part of the record on appeal.
Further, although we know little about what occurred at the April 22, 2022 or December 1, 2022
hearings, neither the Gibbins nor the Novitzky parties suggest in their briefing that the circuit
court received additional evidence at those hearings. Nor does any order entered by the circuit
court state that evidence was received at those hearings or that the court’s decision was based on
evidence received at those hearings.
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upon the court.” The circuit court found the Gibbins parties’ expert “less credible.” In the letter
opinion, the circuit court did not explain what the expert witnesses testified about.
In addition, the record also lacks a timely-filed transcript related to the April 28, 2023
hearing. At this hearing, the parties presented argument on the Novitzky parties’ motion to
reconsider the circuit court’s order lifting the stay, and the circuit court also issued rulings from
the bench. In its final order, the circuit court stated that its conclusions were “reflected in the
attached transcript of the ruling of the [circuit court] on April 28, 2023.” The April 28, 2023
hearing transcript, however, is not attached to the final order in the record. The Gibbins parties
filed this transcript in the circuit court on July 27, 2023, which, as noted above, was outside of
the deadline provided in Rule 5A:8(a) and Code § 1-210(B). Thus, there is no timely-filed
transcript of the April 28, 2023 hearing in the record.
On appeal, the appellant “has the primary responsibility of presenting to this [C]ourt, as a
part of the printed record, the evidence introduced in the lower court, or so much thereof as is
necessary and sufficient for us to give full consideration to the assignment of error.” Prince
Seating Corp. v. Rabideau, 275 Va. 468, 470-71 (2008) (alteration in original) (quoting
Lawrence v. Nelson, 200 Va. 597, 598-99 (1959)). Without a sufficient 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)). Consistent with this principle, “[w]hen 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 [or statement of facts] is indispensable
to the determination of the case, then the requirements for making the transcript [or statement of
facts] a part of the record on appeal must be strictly adhered to.” Veldhuis v. Abboushi, 77
Va. App. 599, 606-07 (2023) (alterations in original) (quoting Bay v. Commonwealth, 60
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Va. App. 520, 528 (2012)). “If we determine that the transcript [or statement of facts] is
indispensable . . . , we must [conclude] that the record on appeal is insufficient to fairly and
accurately determine the issues presented.” Bay, 60 Va. App. at 529 (alterations in original)
(quoting Turner v. Commonwealth, 2 Va. App. 96, 99 (1986)). “Whether the record is
sufficiently complete to permit our review on appeal is a question of law subject to our de novo
review.” Id.We now examine the Gibbins parties’ assignments of error in light of the record on
appeal, which contains limited portions of the September 2, 2021 hearing and no timely-filed
transcript for the April 28, 2023 hearing.
A. Assignment of Error 1
In their first assignment of error, the Gibbins parties argue that the circuit court erred in
ruling that the case should be dismissed for forum non conveniens.
Under Virginia’s forum non conveniens statute, a circuit court “may” dismiss an action
brought by a non-resident of Virginia “if the cause of action arose outside of the Commonwealth
and if the court determines that a more convenient forum which has jurisdiction over all parties is
available in a jurisdiction other than the Commonwealth.” Code § 8.01-265. If the circuit court
dismisses the case, the dismissal must be “without prejudice” and “under such conditions as the
court deems appropriate.” Id. The circuit court may dismiss a case for forum non conveniens
only “upon motion by any party and for good cause shown.” Id.
“Good cause shall be deemed to include, but not to be limited to, the agreement of the
parties or the avoidance of substantial inconvenience to the parties or the witnesses, or
complying with the law of any other state or the United States.” Id. Although “[t]here is no
formula for application of the doctrine of forum non conveniens,” relevant considerations
include “‘relative ease of access to sources of proof; availability of compulsory process for
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attendance of unwilling [witnesses], and the cost of obtaining attendance of willing
witnesses; . . . and all other practical problems that make trial of a case easy, expeditious and
inexpensive.’” RMBS Recovery Holdings, I, LLC v. HSBC Bank USA, N.A., 297 Va. 327, 345
(2019) (second and third alterations in original) (emphasis omitted) (quoting Norfolk & W. Ry.
Co. v. Williams, 239 Va. 390, 393 (1990)). “Careful consideration of the facts, a balancing of the
competing interests, and an analysis of the appropriate principles must be undertaken in each
case.” Norfolk & W. Ry. Co., 239 Va. at 393.
“‘An objection to venue is addressed to the sound discretion of the trial court’ and the
court’s decision ‘will not be reversed on appeal unless the record affirmatively reflects an abuse
of discretion.’” RMBS Recovery Holdings, 297 Va. at 341 (quoting Meyer v. Brown, 256 Va. 53,
56-57 (1998)). A circuit court abuses its discretion:
when a relevant factor that should have been given significant
weight is not considered; when an irrelevant or improper factor is
considered and given significant weight; and when all proper
factors, and no improper ones, are considered, but the court, in
weighing those factors, commits a clear error of judgment.
Id. (quoting Lambert v. Sea Oats Condo. Ass’n, Inc., 293 Va. 245, 253 (2017)). “[T]he abuse of
discretion standard requires a reviewing court to show enough deference to a primary
decisionmaker’s judgment that the court does not reverse merely because it would have come to
a different result in the first instance.” Martin v. Lahti, 295 Va. 77, 87-88 (2018) (quoting
Lawlor v. Commonwealth, 285 Va. 187, 212 (2013)).
The Gibbins parties argue that the circuit court abused its discretion by finding that
Ukraine was a more convenient forum for this litigation. They argue that Virginia is a more
convenient forum, for two reasons: (1) the ongoing war in Ukraine, and (2) the necessity of
bringing claims in multiple courts in Ukraine to pursue the claims they have brought as a single
case in Virginia.
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We start by addressing their second argument. The Gibbins parties contend that
“Ukrainian procedural rules mandate that a claim for damages must be filed in a court in the
place where the alleged damage occurred,” and that they therefore must file their claims relating
to the Kyiv project in Kyiv, and their claims relating to the Mykolaiv project in Mykolaiv,
approximately 250 miles away. Because the Gibbins parties would have to file in multiple
Ukrainian courts the claims they have brought in a single case in Virginia, they argue that
Ukraine cannot be a more convenient forum.
Virginia courts have not addressed the issue of whether a proposed alternative forum may
be considered “more convenient” for purposes of Code § 8.01-265 despite the plaintiff’s being
required to file claims in multiple courts upon dismissal of the case by the Virginia court. The
Gibbins parties argue neither the circuit court nor the Novitzky parties cited any instance of a
case being dismissed “for forum non conveniens . . . where the alternative forum was actually
more than one forum.” But the absence of such a case does not imply a per se rule that being
required to litigate in multiple courts prevents dismissal of a case for forum non conveniens. The
Supreme Court of Virginia has never so held. Rather, as noted above, it has instructed courts
that in considering whether to dismiss a case under the doctrine of forum non conveniens,
“[c]areful consideration of the facts, a balancing of the competing interests, and an analysis of
the appropriate principles must be undertaken in each case.” Norfolk & W. Ry. Co., 239 Va. at
393. And a circuit court’s dismissal of a case for forum non conveniens “will not be reversed on
appeal unless the record affirmatively reflects an abuse of discretion.” RMBS Recovery
Holdings, 297 Va. at 341 (quoting Meyer, 256 Va. at 57). Thus, even against the possibility that
a plaintiff will have to file multiple lawsuits, we must have access to the full evidentiary record
upon which the circuit court based its decision to determine whether it made a clear error in
judgment in dismissing the case for forum non conveniens. See Prince Seating Corp., 275 Va. at
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471 (“[W]here the evidence on which the decree is based has not been made a part of the record
to be considered by us, it is impossible for us to pass on the point that the decree is contrary to
the law and the evidence.” (alteration in original) (quoting Lawrence, 200 Va. at 599)). Here, we
do not have access to the Novitzky parties’ expert’s testimony, and we only have part of the
Gibbins parties’ expert’s testimony. Thus, the lack of a complete hearing transcript prevents us
from being able to determine whether the circuit court erred in dismissing the case for forum non
conveniens despite the Gibbins parties being required to file claims in multiple courts upon such
dismissal.
The Gibbins parties also argue that the circuit court erred by finding that Ukraine is a
more convenient forum for this litigation despite the ongoing war in that country. Throughout
the litigation of this matter, the parties each filed hundreds of pages of briefing and exhibits,
including declarations from experts in Ukrainian law about the impact of the war on the
Ukrainian court system and on Ukraine as a whole. The Gibbins parties filed exhibits reflecting
that Ukraine remains in a state of discord because of Russia’s ongoing siege of the country. The
Novitzky parties replied with exhibits demonstrating that Ukraine’s courts have nonetheless
successfully persevered in their duties, and are, by and large, operational. In addition, the
absence of the full September 2, 2021 hearing does not impact our consideration of this
argument, because the war in Ukraine had not begun at the time of that hearing.
There is, therefore, not an insignificant amount of evidence in the record relating to the
issue. But the circuit court’s decision “will not be reversed on appeal unless the record
affirmatively reflects an abuse of discretion.” RMBS Recovery Holdings, 297 Va. at 341
(quoting Meyer, 256 Va. at 57). As it stands, given the significant conflicting evidence presented
by the parties, the record does not affirmatively reflect an abuse of discretion on this issue. And,
in evaluating whether the circuit court abused its discretion in dismissing the case for forum non
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conveniens, we must look at the circumstances in whole that were presented to the court to
ensure that a “[c]areful consideration of the facts, a balancing of the competing interests, and an
analysis of the appropriate principles [was] undertaken in [this] case.” Norfolk & W. Ry. Co.,
239 Va. at 393. This includes the Gibbins parties’ other argument that Virginia is the more
convenient forum because they would have to litigate their claims in separate courts in Ukraine.
Thus, because we review in total the evidence presented to the circuit court, the lack of a
complete September 2, 2021 hearing transcript prevents us from being able to determine whether
the circuit court erred in its decision dismissing the case for forum non conveniens. The missing
portions of the transcript are “necessary to permit resolution of” the issues raised by the Gibbins
parties in their first assignment of error, so the arguments “will not be considered.” Rule
5A:8(b)(4)(ii); see Dixon, 71 Va. App. at 716.
B. Assignments of Error 8 and 9
In assignments of error 8 and 9, the Gibbins parties argue the circuit court erred in its
May 9, 2023 final order, and in its rulings from the bench during the April 28, 2023 hearing, by
concluding that it had erred in its November 2021 order staying the case rather than dismissing it
after finding the Novitzky parties had proved forum non conveniens.
In its final order, the circuit court “ORDERED that, as reflected in the attached transcript
of the ruling of the [circuit court] on April 28, 2023, the [circuit court] erred in staying instead of
dismissing the matter pursuant to Va. Code § 8.01-265.” As noted above, the April 28, 2023
transcript is not a part of the record on appeal. Thus, we are unable to determine what specific
rulings the circuit court made concerning its determination that it had erred in staying rather than
dismissing the case. A transcript of the April 28, 2023 hearing is thus “necessary to permit
resolution of” assignments of error 8 and 9, so those assignments of error “will not be
considered.” Rule 5A:8(b)(4)(ii); see Dixon, 71 Va. App. at 716.
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C. Assignments of Error 5, 6, and 7
In assignments of error 5, 6, and 7, the Gibbins parties argue the circuit court erred “in its
oral findings and rulings” at the April 28, 2023 hearing by concluding the case should be
dismissed for forum non conveniens. Without a transcript of the April 28, 2023 hearing,
however, we do not know what findings and conclusions the circuit court made with respect to
the question of forum non conveniens, nor do we know what role those findings and conclusions
had in the circuit court’s final decision. A transcript of the April 28, 2023 hearing is thus
“necessary to permit resolution of” assignments of error 5, 6, and 7, so those assignments of
error “will not be considered.” Rule 5A:8(b)(4)(ii); see Dixon, 71 Va. App. at 716.
II. Lack of Argument and Legal Authority
Rule 5A:20(e) requires that an appellant’s opening brief contain “[t]he standard of review
and the argument (including principles of law and authorities) relating to each assignment of
error.” “Statements unsupported by argument, authority, or citations to the record do not permit
appellate consideration.” Parks v. Parks, 52 Va. App. 663, 664 (2008) (quoting Cirrito v.
Cirrito, 44 Va. App. 287, 302 n.7 (2004)). “A significant omission in this regard will result in
waiver of the argument on appeal.” Ceres Marine Terminals v. Armstrong, 59 Va. App. 694,
708 (2012). “Absent argument and authority, an assignment of error is deemed to be
abandoned.” Lafferty v. Sch. Bd. of Fairfax Cnty., 293 Va. 354, 365 (2017).
A. Assignment of Error 2
In assignment of error 2, the Gibbins parties argue that the circuit court erred in its March
1, 2021 letter opinion by failing to deny the Novitzky parties’ motion to dismiss for forum non
conveniens “despite acknowledging that [the Novitzky parties] had not adequately established
the availability of an adequate alternative forum for this case.” The Gibbins parties do not
develop this argument or support it with any legal authority in their briefing. Moreover, the
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Gibbins parties do not make any attempt in their arguments to distinguish between the decisions
the circuit court made in March 2021, September 2021, January 2023, and May 2023. Thus, the
Gibbins parties fail to develop any argument that the circuit court should have denied the motion
to dismiss in March 2021, based on the evidence before the circuit court at that time, as opposed
to denying the motion in September 2021, January 2023, or May 2023. The Gibbins parties’
omissions in these regards are “significant,” and assignment of error 2 is therefore waived.
Ceres, 59 Va. App. at 708.
B. Assignments of Error 3 and 4
In assignments of error 3 and 4, the Gibbins parties assert that the circuit court erred in its
September 17, 2021 letter opinion when it concluded the Novitzky parties had proved forum non
conveniens and the case should thus be dismissed. As noted with respect to assignment of error
2, the Gibbins parties in their briefing do not distinguish between the decisions the circuit court
made in March 2021, September 2021, January 2023, and May 2023. The Gibbins parties
exclusively focus on the quantum of evidence available to the court in May 2023 and make no
attempt to argue that the circuit court erred in September 2021. The Gibbins parties have
therefore abandoned assignments of error 3 and 4, which are directed to the circuit court’s
September 17, 2021 letter opinion. Lafferty, 293 Va. at 365.
C. Assignment of Error 10
In assignment of error 10, the Gibbins parties argue that the circuit court erred in its May
9, 2023 final order because the circuit court “acknowledged that [it] had committed two previous
errors in prior decisions.” In their briefing to this Court, the Gibbins parties make no argument
explaining why the circuit court’s acknowledgement of previous errors would be a basis for this
Court to find error in the final order. The Gibbins parties’ lack of argument in support of
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assignment of error 10 is a “significant omission,” and assignment of error 10 is therefore
waived. Ceres, 59 Va. App. at 708.
CONCLUSION
The Gibbins parties have waived all their assignments of error; accordingly, the circuit
court’s judgment is affirmed.
Affirmed.
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