Construction Law Insights

Riddel v. Commonwealth, 2020 Va. App. LEXIS 56, 2020 WL 1042169 (Va. Ct. App. Mar. 3, 2020)

In 2017, Donald and Kelly Carpenter (the “Carpenters”) were selling their home and directed their real estate agent, Marc Bertinelli (“Bertinelli”), to contract with Jeffrey Riddel (“Riddel”) to inspect and, if necessary, repair their septic system. On June 14, 2017, Riddel inspected the septic system and recommended several repairs to Bertinelli. Acting as the Carpenters’ agent, Bertinelli verbally agreed for Riddel to perform the repairs, believing that Riddel and his associates would be performing the repairs. Riddel’s subcontractor pumped the septic system and an associate of Riddel’s performed the repairs. Riddel delivered the final bill to Bertinelli with instructions for the Carpenters to pay Fairfax Suburban Septic. After paying, the Carpenters discovered that neither

Riddel nor his associates had fully repaired the septic system and Bertinelli submitted a written refund request to Riddel on behalf of the Carpenters. Kelly Tyler (“Tyler”), an investigator with the Virginia Department of Professional Occupation Regulation (“DPOR”), determined that neither Riddel nor Fairfax Suburban Septic held any licenses for contracting in Virginia as of June 14, 2017, the date Riddel made the agreement with the Carpenters. Riddel admitted that he did not hold a license to perform septic repairs, to contracting to perform the repairs on the Carpenters’ septic system, and that he received payment from the Carpenters in exchange for performing those repairs.

After the Commonwealth rested its case, Riddel moved to strike the Commonwealth’s evidence arguing that he had not violated Virginia Code § 54.1-111 because (1) he merely arranged for licensed contractors to perform the repairs to the septic system, arguing that Virginia Code §§ 54.2-801 to 802 permitted Riddel to arrange the work without a contractor’s license and (2) no written contract to perform a septic inspection or repairs existed. The trial court denied Riddel’s motions to strike, convicted Riddel of practicing a profession or occupation without holding a valid licensed required by a regulatory board in violation of Virginia Code § 54.1-111, and sentenced Riddel to 12 months in jail but only imposing 60 days of the sentence conditioned upon Riddel’s good behavior.

On appeal, for the first time, Riddel argued that Virginia Code §§ 32.1-163, 54.1-2302, and 54.1-2300, read together, did not require him to hold a valid license. The Commonwealth responded that Riddel did not make this argument in the trial court and, therefore, should not be permitted to make the argument for the first time on appeal. The Court agreed and held that Rule 5A:18 barred him from making a substantively distinct argument for the first time on appeal. Although Rule 5A:18 does not require citation to specific authority, a party must present the objection itself with sufficient particularity to permit the judge to take necessary action. Thus, making one argument on an issue does not preserve a separate legal point on the same issue for appellate review, which is what Riddel did in this case.

PLDR Law Scott Kowalski 1 PLDR Law Mark Burgin 1

Thomas Wolf 002 Kenneth Stout 002 Jason Goldsmith 002


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