Supreme Court of Virginia
Prince Seating Corp. v. Rabideau
Record No. 070277.·Attorney: Prince Seating filed a motion in the circuit court to set aside the default judgment under Code § 8.01-428(A) and averred that its principal place of business was 1355 Atlantic Avenue, Brooklyn, New York 11216. Further, Prince Seating pled it had never been located, or maintained a registered agent, at the 1201 Broadway address and had never received any process relating to the proceedings against it by Rabideau. Prince Seating contended that the circuit court had lacked "active jurisdiction over Prince Seating as it never received service of process due to the faulty address in the Affidavit for Service of the Motion for Judgment." Consequently, Prince Seating argued the default judgment "is void and should be vacated." Prince Seating attached to its motion an affidavit by Abe Belsky, president of the corporation. Rabideau filed a memorandum with attached exhibits, opposing Prince Seating's motion., Prince Seating's argument that the judgment is void because Rabideau "knew" the 1201 Broadway address was not Prince Seating's "last known address" was neither pled nor supported by anything in the record to reflect that argument was ever made to the circuit court. We therefore do not consider this argument on appeal. Rule 5:25. Commonwealth Transp. Comm'r v. Target *307Corp., 274 Va. 341, 352, 650 S.E.2d 92, 98 (2007) (appellant barred from raising new argument for the first time on appeal); Harmon v. Sadjadi, 273 Va. 184, 188 n. 3, 639 S.E.2d 294, 296 n. 3 (2007) (same); see also Omohundro v. Arlington County, 194 Va. 773, 778, 75 S.E.2d 496, 499 (1953) ("We can consider only the evidence presented in the record. Questions raised in the brief about evidence not shown in the record cannot be considered by us."). Similarly, Prince Seating's argument that the 1201 Broadway address was "incomplete" and therefore failed to satisfy the Code § 8.01-329 requirements because it did not contain a reference to Bernard Shafran was not pled and the record does not reflect that argument was made to the circuit court., Prince Seating also argues that Rabideau could not rely on the 1201 Broadway address simply because it appeared in the New York Department of State records for Prince Seating. Prince Seating further argues that, under New York law, service of process is ineffective if a plaintiff bypasses the Department of State and mails process directly to the address to which the Department would send process. These arguments were not pled in Prince Seating's motion or Belsky's affidavit and nothing in the record reflects that these arguments were presented to the circuit court. Therefore, we do not consider these arguments under Rule 5:25., Prince Seating also contends the circuit court's judgment is void for lack of personal jurisdiction because it failed to meet the due process requirements of the United States Constitution. Nothing in the record reflects this argument was ever made to the circuit court and it is also barred from appellate review under Rule 5:25., We cannot review the ruling of a lower court for error when the appellant does not bring within the record on appeal the basis for that ruling or provide us with a record that adequately demonstrates that the court erred. Our rules require the appellant to "present a sufficient record on which the court can determine whether or not the lower court has erred." Wansley v. Commonwealth, 205 Va. 419, 422, 137 S.E.2d 870, 872-73 (1964) (citing Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256, 257 (1961)). "An appellant who seeks the reversal of a decree ... 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.... [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." Lawrence v. Nelson, 200 Va. 597, 598-99, 106 S.E.2d 618, 620 (1959). Because Prince Seating failed to provide an adequate record, we cannot determine the basis for the circuit court's ruling. Prince Seating's failure to file a transcript or statement of facts relaying the proceedings of the November 3 hearing precludes our review on appeal of its last argument., Accordingly, for the foregoing reasons, we affirm the judgment of the circuit court. The appellant shall pay to the appellee damages according to law.0 citations·
Summary of the case Prince Seating Corp. v. Rabideau
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Key Issues of the case Prince Seating Corp. v. Rabideau
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Decision of the case Prince Seating Corp. v. Rabideau
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Opinions
This order shall be certified to the said circuit court. This order shall be published in the Virginia Reports.