Real Property: Mechanic’s lien statute trumps choice of venue clause

Although the parties’ construction contract designated Loudoun County as the venue for disputes related to the agreement, that court lacked jurisdiction over an action to enforce a mechanic’s lien where the property and owner were located in Alexandria. The statute unequivocally requires an enforcement action to be brought in the county or city where the structure is situated or the owner resides.

Background

These consolidated appeals arise from a residential construction contract dispute between ADO Home Services LLC and Kristin L. Frykman, involving cross-allegations of breach of contract, disputes over available remedies and requests for attorney’s fees under the parties’ written agreement.

Mechanic’s lien

ADO appeals the trial court’s decision that it lacked jurisdiction under Code § 43-22 to adjudicate ADO’s mechanics’ lien in Loudoun County due to the property and the owner both being located in Alexandria, Virginia. Code § 43-22 states it “may be enforced in a court of equity by a bill filed in the county or city wherein the . . . structure . . . is situated, or wherein the owner . . . resides.”

ADO argues that the General Assembly’s use of “may,” rather than “must” or “shall,” confers discretionary authority, permitting enforcement outside the jurisdictions listed. ADO also submits there is nothing in the statute suggesting that the enforcement action is jurisdictional. Both arguments are unpersuasive.

By its plain terms, Code § 43-22 requires that an action to enforce the lien must also be brought in Alexandria. Filing in Loudoun County was not merely an error of venue—it divested the trial court of statutory jurisdiction to entertain the lien enforcement action.

ADO’s reliance on the contractual forum selection clause—designating Loudoun County as the venue for disputes related to the agreement—is unavailing. While forum selection clauses are generally enforceable under the “modern rule,” such clauses must yield to contrary statutory mandates. Accordingly, the trial court did not err in sustaining Frykman’s demurrer for lack of jurisdiction.

Damages

ADO contends the trial court erred by disregarding the testimony of its expert witness, Scott Brinser, and by awarding only nominal damages of $1,000 against Frykman. Brinser, although qualified by the trial court as an expert in corporate accounting and small business accounting, provided no opinion or independent report to the court. Brinser reviewed the project’s receipts, bank statements and credit card statements against the data entered into QuickBooks but conceded that the expenses and invoices could have been added post hoc.

Brinser further testified that he relied on reports generated by QuickBooks, showing direct costs and CoConstruct, detailing direct costs and labor costs. The latter document contained mistakes, such as missing names for recorded hours and miscellaneous hours, that Brinser could neither explain nor verify. On these facts, the trial court properly exercised its discretion in assigning little weight to Brinser’s testimony, as it lacked adequate documentary support and depended heavily on the credibility of internal reports not admitted into evidence. Thus, the trial court did not err in disregarding Brinser’s testimony and awarding only nominal damages to ADO.

Attorneys’ fees

ADO contends the trial court erred in denying its request for attorney’s fees under the contract. The court disagrees. Paragraph 4 contemplates an award of attorney’s fees to ADO in the event of default by Frykman, but such award is due only after ADO recovers for defaulted payments. The trial court properly recognized that the contract differentiates a breach (under paragraph 10) from a default in payment (under paragraph four), which necessarily entails a failure to pay a sum certain.

The court found that no such amount was proven to be owed by Frykman, and thus no default occurred. Accordingly, the trial court acted within its discretion in denying attorney’s fees because ADO failed to prove the factual predicate—payment default—required to trigger the contractual award of attorney’s fees.

Cross appeal

Frykman maintains the trial court erred in failing to construe the contract to require repayment of alleged overpayments; finding she was the first party to breach; awarding nominal damages to ADO and denying her request for attorney’s fees. The court disagrees.

Affirmed.

ADO Home Services LLC and Kristin L. Frykman, Record Nos. 0414-24-4, 0458-24-4, June 10, 2025. CAV (Bernhard). From the Circuit Court of Loudoun County (Sincavage). James P. Magner (Magner Law, PLLC, on briefs), for ADO Home Services, LLC. Kristin L. Frykman, pro se. VLW 025-7-139. 28 pp.