Virginia Lawyers Weekly//September 19, 2023
Virginia Lawyers Weekly//September 19, 2023//
Where appellant challenges two of the trial court’s rulings in this loan default case, there is no appellate jurisdiction to review the trial court’s orders. Appellant filed a late notice of appeal with regard to the trial court’s first order. With respect to the second order, appellant has not filed a necessary transcript of the relevant hearing.
Statement of the case
“Jeffrey Poole, pro se, appeals the trial court’s orders denying two motions to set aside a default judgment against him and his company, SED Construction, LLC. He argues that the trial court erroneously concluded that it could not set aside a default judgment more than 21 days after it was entered.
“He also argues that the trial court erred by not finding that an accord and satisfaction agreement resolving the default judgment bound On Deck Capital, Inc.
“Poole maintains that the trial court should have ordered On Deck to fulfill the agreement’s terms. Nevertheless, the record establishes that Poole did not file a timely notice of appeal challenging the trial court’s first order denying the motion to set aside the default judgment.
“Moreover, the record does not contain a transcript or a written statement of facts in lieu of a transcript necessary to resolve Poole’s argument challenging the second order.
“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.’”
In March 2021, On Deck Capital sued Poole and SED for breach of contract and guaranty after a default on a $50,000 loan.
The trial court entered a $58,384 judgment for On Deck after “Poole and SED did not file a responsive pleading.”
“On June 20, 2022, On Deck moved the trial court to vacate the final judgment order because Poole and SED ‘entered into a settlement agreement with [On Deck] and … paid the settlement amount in full.’
“Supporting the motion, Poole, pro se, filed a ‘declaration’ that purported to provide ‘the underlying material facts.’
“Specifically, Poole alleged that after his attorney ‘terminated … representation’ on November 29, 2021, he represented himself in settlement negotiations with On Deck’s counsel. Poole maintained that On Deck, through its counsel, ‘agreed to accept $41,000.00 as full and final payment’ on the default judgment, which was to be paid by January 24, 2022. …
“Poole paid $41,000 to On Deck. On Deck’s counsel emailed Poole confirming the payments and promising to forward a ‘revised agreement’ detailing the terms of an accord and satisfaction.
“Poole attached to his ‘declaration’ the alleged accord and satisfaction agreement, which neither party had signed. The agreement provided, in part, that upon Poole’s payment of $41,000, On Deck would ‘request deletion’ of the judgment to ‘any business or consumer credit reporting agency.’
“Poole acknowledged that the wire transfers were not transmitted before January 24, 2022. Nevertheless, he insisted that On Deck’s counsel had apparent authority to act on his client’s behalf and the emails confirming the payments effectively amended the terms of the ‘revised agreement’ and bound On Deck to the agreement’s terms.
“Accordingly, Poole asked the trial court to order that On Deck was bound by the ‘revised agreement,’ including the provisions requiring it to contact any business or consumer credit reporting agency.
“On July 14, 2022, the trial court granted the motion to vacate the default judgment. On July 25, 2022, however, the trial court vacated its July 14, 2022 order to ‘correct a mistake arising from an oversight’ under Code § 8.01-428(B).
“The court simultaneously entered an order denying On Deck’s motion to vacate the default judgment because more than 21 days had passed since entry of the order in November 2021.
“On August 31, 2022, Poole filed a separate motion to vacate the default judgment and dismiss the underlying case. Poole referenced the ‘declaration’ he had filed in support of On Deck’s prior motion and argued that the trial court had the authority to vacate the default judgment under Code § 8.01-428.
“Moreover, he contended that ‘On Deck [wa]s bound’ under the alleged accord and satisfaction agreement ‘to vacate the judgment and dismiss the action, and take the steps agree[d] to with the credit reporting agencies.’
“Based on ‘principles of agency and contract law,’ Poole asked the trial court to order On Deck to comply with the terms of the accord and satisfaction agreement. After a September 9, 2022 hearing, the trial court denied Poole’s motion.”
“‘Except as otherwise provided by statute, no appeal will be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, … counsel files with the clerk of the trial court a notice of appeal’ and provides a copy of the notice to opposing counsel. Rule 5A:6(a) (emphasis added)[.] …
“[T]he trial court’s July 25, 2022 order disposed of the entire matter then pending before the court by denying On Deck’s motion to vacate the default judgment.
“That order maintained the default judgment and nothing else remained ‘to be done.’ … Poole, however, did not file his notice of appeal challenging that judgment until October 13, 2022, outside the 30-day deadline proscribed in Rule 5A:6(a).
“Accordingly, we do not have jurisdiction to consider Poole’s first assignment of error, which explicitly challenges the July 25, 2022 order.”
“Although the trial court clearly had jurisdiction to consider a motion to vacate the default judgment despite the passage of more than 21 days, … we lack an adequate record to review the trial court’s ruling denying Poole’s motion to vacate the default judgment. …
“Without a sufficient record, we will not consider the asserted error. … A transcript of any proceeding or a written statement of facts becomes part of the record if filed in the trial court clerk’s office within 60 days after entry of final judgment. …
“‘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.’ …
“With no record of the evidence and arguments Poole made or the positions he took (or possibly abandoned) at the September 9, 2022 hearing, we cannot know if his appellate argument repudiates a position that he may have taken in the trial court, let alone whether the trial court ruled, and erred, as he claims. …
“Thus, the transcript, or a written statement of facts in lieu of the transcript, from the September 9, 2022 hearing is indispensable to a determination of Poole’s arguments under his second assignment of error raised on appeal. Accordingly, his arguments are waived.”
Dismissed in part and affirmed in part.
Poole, et al. v. On Deck Capital, Record No. 1926-22-4, Aug. 29, 2023. CAV (unpublished opinion) (per curiam) From the Circuit Court of Arlington County. (Newman Jr.) Jeffrey Poole pro se. Bret T. Thrasher for appellee. VLW 023-7-336, 7 pp.