Destini Murphy v. An Dang ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Huff, Raphael and Lorish
DESTINI MURPHY
MEMORANDUM OPINION* BY
v. Record No. 0201-22-4 JUDGE GLEN A. HUFF
SEPTEMBER 13, 2022
AN DANG
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Penney S. Azcarate, Judge
(Destini Murphy, on brief), pro se. Appellant submitting on brief.
(Heather R. Steele; Lauren R. Gillespie; Pesner Altmiller Melnick
DeMers & Steele PLC, on brief), for appellee. Appellee submitting
on brief.
In the Fairfax County Circuit Court (the “circuit court”), An Dang (“appellee”) brought
an unlawful detainer action against Destini Murphy (“appellant”), the lessee of his property in
Fairfax, Virginia. The circuit court granted possession in favor of appellee, and appellant now
appeals the circuit court’s judgment. This Court affirms.
I. BACKGROUND
This Court recounts the facts in the light most favorable to appellee, the prevailing party
at trial. See Brandau v. Brandau, 52 Va. App. 632, 635 (2008) (citing Smith v. Smith, 43
Va. App. 279, 282 (2004)).
On May 25, 2021, appellant and appellee entered a lease agreement for appellant to rent
appellee’s condominium unit in Fairfax from June 1, 2021, to May 31, 2022. Soon after moving
in, appellant complained to appellee of multiple issues with the property, including faulty air
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
conditioning, noisy neighbors, and cigarette smoke flowing into the residence. Consequently,
appellant refused to pay rent in August and September 2021.
To resolve the conflict, the parties executed a lease termination agreement on September
3, 2021. The agreement set up a “cash-for-keys” framework, providing that appellee would
forgo rent from August and September and would pay appellant a total of $2,750; in return,
appellant would abide by the remaining terms of the lease but move out of the property by
September 30, 2021, the new “Termination Date” for the lease.
After appellee sent the first payment to appellant, appellant sent appellee’s counsel a
letter to notify him that she would not vacate the property by September 30. In the letter, she
explained her new residence was not yet ready and offered to renegotiate the lease termination
agreement, warning, “I could stay a lot longer if we went to court.”
Appellant never moved out. Appellee filed an unlawful detainer action against appellant
in Fairfax County General District Court in October 2021, and the general district court awarded
him possession on November 12.
Appellant appealed to the Fairfax County Circuit Court on December 8 and filed with
that court a “Motion to Vacate Judgment” on January 18, 2022, before the circuit court’s trial.
The court held a hearing on the motion on January 28 and denied the motion “on the basis that
there [was] no final judgment.”1
The circuit court held a trial on February 3.2 Appellant began her argument by asking the
court to dismiss the case, asserting she did not receive a thirty-day notice of termination. She
cited Code § 8.01-126’s requirement that a termination notice be admitted into evidence before
1
The record before this Court does not include the transcript from the motion hearing.
2
The record contains only a partial transcript from the trial, which includes the parties’
opening and closing arguments, as well as appellant’s cross-examination of appellee.
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the court can enter an order of possession. The court rejected that argument and refused to
dismiss the case.
On cross-examination of appellee, appellant asked appellee if he had a certificate of
occupancy for the property before they executed the lease; he admitted he did not but also noted
he obtained the permit in January 2022. Ultimately, the court granted possession to appellee and
awarded him attorney fees.3 This appeal followed.
II. ANALYSIS
Appellant makes two arguments on appeal. First, she claims that because she never
received a thirty-day termination notice from appellee, the circuit court could not enter an order
of possession. Second, she argues the court erred by denying her motion to vacate the “judgment
for possession on the grounds that the lease was void” and the courts lacked jurisdiction to
enforce a “void” lease.
A. Appellant’s First Assignment of Error
Before a court may enter an order of possession, the court must have admitted into
evidence a “proper termination notice” presented by the plaintiff. Code § 8.01-126(E)(2)(a).
Appellant claims she never received a thirty-day termination notice, so the court had no power to
grant possession to appellee. This Court reviews this statutory argument de novo. Esposito v.
Va. State Police, 74 Va. App. 130, 133 (2022).
Appellant’s insistence that she receive a termination notice thirty days before the
termination of the lease comes from subsection A of Code § 8.01-126: “For the purposes of this
section, ‘termination notice’ means a notice given under § 55.1-1245 or other notice of
termination of tenancy given by the landlord to the tenant of a dwelling unit . . . .”
3
The circuit court awarded appellee a total of $18,640.57 in attorney fees and costs. On
appeal, appellee does not request additional attorney fees.
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Appellant thus looks to Code § 55.1-1245, which spells out the process for a lessor to
evict a lessee for “material noncompliance” of the lease and other circumstances. That statute
requires a notice of termination at least thirty days before termination of the lease.
While appellant is correct that the first portion of Code § 55.1-1245 itself requires a
thirty-day notice, she ignores the second half of Code § 8.01-126(A), which adds that some
“other notice of termination of tenancy” satisfies the proper termination requirement of Code
§ 8.01-126(E)(2)(a). When appellant agreed to the lease termination agreement, she also agreed
to its explicit notice that the lease would terminate on September 30, 2021. This language in the
agreement gave appellant sufficient notice and thus qualifies as some “other notice of
termination.” Code § 8.01-126(E)(2)(a); cf. Code § 55.1-1253 (“[T]he landlord and the tenant
may agree in writing to an early termination of a rental agreement.”). And because the appellee
submitted the agreement to the circuit court, which subsequently admitted it into evidence, the
court could enter an order of possession.
B. Appellant’s Second Assignment of Error
In her second argument, appellant claims the circuit court erred in denying her “Motion
to Vacate the Judgment for Possession,” which she filed before the circuit court held its trial. If
appellant’s motion was intended to reference the judgment for possession entered by the general
district court, that judgment had already been vacated by operation of law upon appellant’s filing
of appeal to the circuit court. Wright v. Commonwealth, 52 Va. App. 690, 706 n.9 (2008) (en
banc) (“[D]e novo appeals actually vacate the decision of the lower court as if it had never
occurred and provide a new trial in the circuit court.”). And if appellant’s motion to vacate was
made in anticipation of an order not yet entered by the circuit court, her motion was premature.
The court, therefore, did not err in denying the motion.
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III. CONCLUSION
Because appellant’s first assignment of error fails and her second assignment of error is
moot, this Court affirms the judgment below granting possession to appellee.
Affirmed.
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