Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant was convicted of practicing a profession or occupation without a valid license, his conviction is affirmed because the argument he presented on appeal was never presented to the trial court.
Background
Two homeowners directed their real estate agent, Bertinelli, to contract with appellant Riddel to inspect and, if necessary, repair their home’s septic system to prepare the home for sale. Riddel told Bertinelli repairs were necessary and would cost $2,500. “Riddel’s actions and representations led Bertinelli to believe that Riddel and his associates would be performing the repairs.”
Repairs were made but problems remained. Addition work was done and the homeowners paid $2,620 to Fairfax Suburban Septic, Riddel’s company. The homeowners later discovered that “neither Riddel nor his associates had fully repaired the septic system.” Bertinelli unsuccessfully sought a refund on behalf of the homeowners.
The Virginia Department of Professional Occupation Regulation discovered that neither Riddel nor Fairfax Suburban held any contracting licenses. Riddel admitted to an investigator that he did not have a license to do septic repair. He did not deny that he was contracted to make septic repairs and had been paid for doing the work.
At trial, after the commonwealth rested its case, Riddel moved to strike “arguing that he had not violated Code § 54.1-111 because (1) he merely arranged for licensed contractors to perform the repairs to the septic system, and, therefore, (2) no written contract to perform a septic system inspection or repairs existed.
“Regarding the first point, counsel argued, ‘there’s been no evidence that [Riddel was] doing work that requires a license. He [wa]s making arrangements to have these jobs done.’ Regarding the second point, counsel argued, ‘[t]he best evidence you have of a contract is a receipt.’
“The Commonwealth responded that Riddel met the definition of a ‘Class C’ contractor and was therefore required to have a license to contract to repair a septic system under Code §§ 54.1-111 and 54.1-1100 when Riddel provided an estimate and entered into an agreement to perform the repairs in exchange for $2,620, an amount that required a ‘Class C’ license. The trial court denied Riddel’s motion to strike.”
Riddel did not present evidence and renewed his motion to strike, “arguing that Code §§ 54.2-801 to -8024 permitted him to arrange the work without a contractor’s license. The trial court rejected Riddel’s argument, holding that a ‘Class C’ contractor’s license was, in fact, required.”
Riddel appealed.
New argument
“Riddel argues for the first time on appeal that Code §§ 32.1-163, 54.1-2302, and 54.1-2300, read together, did not require him to hold a valid license. The Commonwealth responds that Riddel did not make this argument in the trial court and, accordingly, Riddel should not be permitted to make this argument for the first time on appeal.
“We agree with the Commonwealth. Because Riddel failed to make this substantively distinct argument, Rule 5A:18 bars him from making this argument for the first time on appeal.”
At trial, “Riddel’s counsel relied exclusively on Code § 54.1-111 in support of his argument that Riddel performed no actions that required a contracting license because he merely made the bid and arrangements for the work. He also asserted that no contract was ever formed[.] …
“The Commonwealth argued that Riddel’s actions required a ‘Class C’ contractor’s license under Code §§ 54.1-111 and 54.1-1100 because Riddel provided an estimate and entered into an agreement with the Carpenters to perform the repairs in exchange for $2,620, an amount that required a ‘Class C’ license.
“The trial court relied upon these specific arguments referring to specific statutory provisions in denying Riddel’s motion to strike. Renewing his motion to strike, Riddel then argued that Code §§ “54.2-801 to -802” permitted him to arrange the work without a contractor’s license. The trial court rejected Riddel’s argument, holding that a ‘Class C’ contractor’s license was, in fact, required. Accordingly, the trial court also denied Riddel’s renewed motion to strike.
“Riddel now cites, for the first time on appeal, Code §§ 32.1-163, 54.1-2302, and 54.1-2300 in support of his assignment of error. These substantively distinct provisions govern unlicensed waterworks or wastewater works operators.
“Because Riddel failed to present this new argument to the trial court first, he denied the trial judge the opportunity to rule on the matter now briefed and argued before this Court on appeal. Rule 5A:18 bars this Court from considering this newly alleged error, never considered by the trial court, on appeal.”
Affirmed.
Riddell v. Commonwealth, Record No. 0647-19-4, March 3, 2020. CAV (Athey) from Fairfax Cir. Ct. (Carroll). Corinne J. Magee for appellant, Mason D. Williams for appellee. VLW 020-7-040, 7 pp. Unpublished.
