PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1841

ZOROASTRIAN CENTER AND DARB-E-MEHR OF METROPOLITAN 

WASHINGTON, D.C.,

Plaintiff – Appellant,

v.

RUSTAM GUIV FOUNDATION OF NEW YORK; MEHRABAN SHAHRVINI, 

Trustee; DARYOUSH JAHANIAN, a/k/a Dariush Jahanian, 

Trustee,

Defendants – Appellees,

and 

SOROOSH SOROOSHIAN; BRUCE NADJMI; KHOSRO MEHRFAR,

Appellees,

and

ESFANDIAR ANOUSHIRAVANI, Trustee; KEIKHOSRO MOBED, Trustee; 

ROSTAM GHAIBI, Trustee; JAMSHID VARZA, Trustee; ROSTAM 

SARFEH, Trustee,

Defendants.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District 

Judge. (1:13-cv-00980-LO-TRJ)

Argued: September 15, 2015 Decided: May 4, 2016 

Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
2

Affirmed in part, vacated in part, and remanded by published

opinion. Judge Agee wrote the opinion, in which Judge Wilkinson 

and Judge Keenan joined.

ARGUED: Robert Lee Vaughn, Jr., O’CONNOR & VAUGHN LLC, Reston, 

Virginia, for Appellant. Billy Bernard Ruhling, II, TROUTMAN 

SANDERS LLP, Tysons Corner, Virginia, for Appellees. ON BRIEF:

Massie P. Cooper, TROUTMAN SANDERS LLP, Richmond, Virginia, for 

Appellees.
3

AGEE, Circuit Judge:

The Zoroastrian Center and Darb-E-Mehr of Metropolitan 

Washington, D.C. (“The Center”) is a nonprofit entity dedicated 

to the advancement and practice of Zoroastrianism, an ancient 

Persian religion. Rustam Guiv Foundation (“Rustam Guiv”) is a 

charitable trust with a similar mission.1 As part of a joint 

effort to construct a Zoroastrian worship center, the parties 

signed a ninety-nine-year lease on a parcel of property owned by 

Rustam Guiv in the Vienna area of Fairfax County, Virginia. 

What followed was a tumultuous relationship that culminated in 

Rustam Guiv terminating the lease. The Center responded with 

this litigation seeking, among other things, a declaratory 

judgment to reinstate the lease. Rustam Guiv removed the case 

to federal court, where the district court ultimately granted 

summary judgment to Rustam Guiv and awarded attorneys’ fees. On 

appeal, The Center raises several claims of error, including the 

threshold question of whether federal subject matter 

jurisdiction existed. 

We agree with the district court that The Center’s case 

cannot go forward. Rustam Guiv presented sufficient evidence to 

show complete diversity between the parties, thereby 

establishing subject matter jurisdiction in federal court. 

 1 Except as indicated, we reference the Rustam Guiv trust 

and its individual trustees as “Rustam Guiv” collectively. 
4

Likewise, the undisputed material facts show that The Center 

breached the lease, so we affirm the district court’s decision 

to dismiss the complaint in its entirety and enter judgment for 

Rustam Guiv. 

The district court’s attorneys’ fee award, however, 

presents another matter. Under Virginia law governing 

contractual fee-shifting provisions, the prevailing party is 

entitled to recover attorneys’ fees for work performed only on 

its successful claims. See Ulloa v. QSP, Inc., 271 Va. 72, 82

(2006). The district court correctly identified Rustam Guiv as 

the prevailing party but made no effort to narrow the fee award 

to its successful claims. Thus, we vacate the district court’s 

fee award and remand for further proceedings as to that issue.

I.

A.

Rustam Guiv owns a seven-acre parcel of property in Vienna, 

Virginia. In 1991, Rustam Guiv leased this land to The Center 

for ninety-nine years at a nominal rent of one dollar a year. 

In return, The Center was to construct “a place of worship for 

all Zoroastrians of the world”; “a facility for the advancement 

of the Zoroastrian religion”; and “a dwelling suitable for 
5

residence of a Mobed (priest).” J.A. 41.2 The Center would bear 

all costs of improving the property to meet these requirements.3 

The lease did not include a firm deadline for this construction, 

but did provide that “time is of the essence.” J.A. 50. 

The Center contends it invested “thousands of dollars” in 

planning and designing a worship facility, which included 

obtaining permits and density exemptions from the Fairfax County

government. Despite these alleged efforts, however, The Center 

did not begin actual construction for many years. And, by 2008, 

The Center still had not completed a single structure. 

Frustrated with the state of progress, Rustam Guiv 

threatened to rescind the lease. The parties then executed a

lease amendment dated January 1, 2009, designed to “re-energize 

[The Center’s] efforts.” J.A. 261. Together, the original 

lease and amendment governed the parties’ lessor-lessee 

relationship. 

Several clauses from the lease amendment are pertinent 

here. First, The Center agreed to “undertake such construction 

[of a religious center] no later than November 1, 2009” and 

complete the project by March 13, 2011. J.A. 55. Although 

 2 This opinion omits internal marks, alterations, citations, 

emphasis, or footnotes from quotations unless otherwise noted.

3 The Center was also required to pay all real estate taxes 

and related assessments, the cost of insurance, and all 

utilities.
6

Rustam Guiv was allowed to extend this completion deadline, in 

no event could construction go past March 15, 2013. The 

amendment further permitted Rustam Guiv to terminate the lease 

if “substantial” activity had not been undertaken by either 

date. J.A. 55-56. As these provisions make clear, the lease 

amendment was designed to speed the pace of construction by 

instituting hard deadlines. 

For financial reasons not entirely clear from the record, 

The Center missed the start deadline for construction. This set 

in motion a series of meetings that culminated with Rustam Guiv

notifying The Center that it was pursuing a partnership with 

another charitable foundation for a Zoroastrian temple in 

Maryland. Dr. Daryoush Jahanian, who can best be described as 

RGF’s lead trustee, followed up with an email explaining that 

this alternate site would be sufficient to service the regional 

Washington Zoroastrian community, and consequently, The Center 

should “stop signing any contract[s] and . . . not write any 

check[s] as much as possible.” J.A. 869. The Center 

“temporarily stopped the progress” on this recommendation from 

Dr. Jahanian, but soon decided “to stay on course” and continue 

its efforts at construction. J.A. 473.

In sum, by the end of April 2010, the original lease had 

been amended to include particular construction deadlines, the 

first of which had been missed. Rustam Guiv had chosen to focus 
7

its efforts on an alternative site and requested The Center to 

stop construction. The Center briefly ceased its operations, 

but within a few weeks, elected to continue with its plans.

B.

The parties remained at a virtual standstill for over a 

year without significant dialogue. The Center alleges that it 

could not “obtain bonds that were required by Fairfax County” or 

“pull any permits” without Rustam Guiv’s consent, and thus its 

construction activities stalled. Opening Br. 11. Rustam Guiv, 

in turn, was pursuing the Maryland site.

In March 2011, Rustam Guiv contacted The Center for an inperson meeting about taking possession of the Vienna property. 

During the subsequent conference, however, the parties agreed to 

continue construction on the Vienna building as reflected in a 

one-page, hand-written Memorandum of Understanding (“MOU”) that 

included the following provisions:

1 – [Rustam Guiv] will be in full 

cooperation with [The Center] in 

facilitating the required paperwork.

2 – [The Center] will provide to [Rustam 

Guiv] an accounting book to list the names 

[and] amounts of all donations and all 

expenses. [The Center] will also continue 

to provide quarterly financial report[s]

[and] account summar[ies] of all donations 

and expenses.

3 – [The Center] will provide an 

accomplishment plan with milestones [and] 
8

deadlines, mutually agreed by the two 

parties. 

. . . .

6 – Items 2, 3 and 5 above will be provided 

on or before 5/15/2011 and must be approved 

by [Rustam Guiv].

J.A. 495-96. 

As required by the MOU, The Center delivered an initial 

report on May 15, 2011. That report, however, failed to include 

a full accounting, list of donor activity, or accomplishment 

milestones. For reasons unknown, Rustam Guiv did not object to 

these deficiencies, and the parties again went silent.

On April 20, 2013 –- approximately two years after the MOU

was drafted, four years after the lease amendment, and over 

twenty years after the original lease was signed –- Rustam Guiv

sent The Center a formal notice terminating the lease. As 

grounds, Rustam Guiv cited The Center’s failure to complete 

construction of a worship center by March 15, 2013, the final 

deadline in the lease amendment. The Center responded with this 

litigation seeking, among other relief, a declaratory judgment 

that the lease remained in effect. 

C.

The Center filed its initial complaint in the Fairfax 

County Circuit Court, naming Rustam Guiv and its trustees, 

individually, as defendants. Rustam Guiv timely removed the 
9

case to the Eastern District of Virginia based on diversity of 

citizenship. Opposed to proceeding in federal court, The Center 

sought remand on grounds that Rustam Guiv had failed to show the 

complete diversity necessary to establish federal jurisdiction. 

In its order, the district court noted that neither the 

Supreme Court nor the Fourth Circuit had addressed the precise 

issue of how to determine the citizenship of a defendant-trust 

for purposes of diversity jurisdiction. Faced with a lack of 

binding precedent, the court adopted the Third Circuit’s test: 

the citizenship of a trust is determined by looking at the 

citizenship of both the trustees and beneficiaries. See Emerald 

Inv’rs Tr. v. Gaunt Parsippany Partners, 492 F.3d 192, 205 (3d 

Cir. 2007). Having settled on this framework, the district 

court reserved judgment “until the parties [had] presented 

[further] evidence of [Rustam Guiv’s] citizenship . . . and 

additional evidence related to the trust’s beneficiaries.” J.A. 

166. 

Rustam Guiv then submitted an affidavit from Dr. Jahanian 

and residence information for the current trustees. These 

documents affirmed that none of its current trustees or 

beneficiaries were Virginia residents. Based on this evidence, 

and over The Center’s objection, the district court denied The 

Center’s motion to remand. 
10

D.

The Center filed an amended complaint requesting a 

declaratory judgment that the original lease remains in full 

force and effect (Count I); an order restraining Rustam Guiv

from interfering with its rights under the lease (Counts II and 

III); and a judgment that Rustam Guiv had breached the lease and 

was liable for damages (Count IV). Meanwhile, Rustam Guiv filed 

its answer along with several counterclaims seeking relief for

breach of contract (Counterclaim Count I); slander of title 

(Counterclaim Count II); and quiet title (Counterclaim Count 

III).

The parties filed cross-motions for summary judgment at the 

close of discovery. Although The Center presented a litany of 

arguments to the district court, its principle theory of the 

case rested on the MOU and its enforceability. According to The 

Center, Rustam Guiv had no authority to cancel the lease because 

the MOU was a binding agreement that rescinded the construction 

timeline in the lease and lease amendment.

Following oral argument, the district court granted summary 

judgment to Rustam Guiv. The court found that The Center had 

breached the lease by failing to construct a temple before the 

final deadline, and as a result, Rustam Guiv validly exercised 

its right to end the lease. The court rejected The Center’s 

argument that the MOU altered the lease amendment’s deadlines, 
11

concluding it was “too vague to be enforceable.” J.A. 1170.

The court further noted, “[e]ven if [the MOU] read as a 

modification of the lease arrangement . . . nothing in [it]

eliminates or alters the dispositive deadlines.” Id. 

Therefore, “RGF still had the right to terminate the tenancy.” 

Id. The effect of this order was to dismiss The Center’s 

amended complaint with prejudice and enter judgment in favor of 

Rustam Guiv.4

Rustam Guiv then petitioned the court for an award of

attorneys’ fees. After adjusting the billing rates and time 

billed by several attorneys, the district court granted Rustam 

Guiv’s fee request. The Center filed a motion for 

reconsideration, which the district court denied.

The Center timely appealed, challenging both the district 

court’s decision on the merits and the fee award. We have 

jurisdiction under 28 U.S.C. § 1291. 

After oral argument in this case, the Supreme Court granted 

certiorari in Americold Realty Trust v. ConAgra Foods, Inc. “to 

resolve confusion among the Courts of Appeals regarding the 

citizenship of unincorporated entities.” 136 S. Ct. 1012, 1015 

 4 Although summary judgment was awarded to Rustam Guiv, not 

all of Rustam Guiv’s claims were successful. Specifically, the 

district court rejected the slander of title counterclaim. That 

finding is relevant in the context of its attorneys’ fee award 

as discussed below. 
12

(2016). Consequently, we held this case in abeyance pending the 

Supreme Court’s decision, which has issued and is reviewed 

below. 

II.

We first address Rustam Guiv’s argument concerning the

standard of review. Typically we consider a district court’s 

decision on summary judgment de novo, applying the same legal 

standards as the district court and viewing the facts in the 

light most favorable to the nonmoving party. FDIC v. Cashion, 

720 F.3d 169, 173 (4th Cir. 2013). Rustam Guiv argues instead 

that the standard of review should be abuse of discretion 

because The Center noticed its appeal from the order denying its 

motion for reconsideration. See Robinson v. Wix Filtration 

Corp., 599 F.3d 403, 407 (4th Cir. 2010) (“This court reviews 

the denial of a Rule 59(e) motion under the deferential abuse of 

discretion standard.”). 

Although the factual underpinning of Rustam Guiv’s argument 

is correct –- The Center’s notice of appeal designates the 

district court’s ruling on the motion for reconsideration –- its 

legal conclusion does not follow. “[W]e should be liberal in 

passing on the sufficiency of a notice of appeal,” and the 

“designation of a postjudgment motion in the notice of appeal is 

adequate to support a review of the final judgment when the 
13

intent to do so is clear” and there is no prejudice. MLC Auto., 

LLC v. Town of S. Pines, 532 F.3d 269, 279 (4th Cir. 2008)

(citations omitted). That is the case here. 

The Center’s notice of appeal references the final order 

from its motion for reconsideration but simultaneously requests 

review of the “relief” granted Rustam Guiv by the district 

court. J.A. 1295. On these facts, we believe The Center’s 

intent to appeal the district court’s summary judgment ruling is 

sufficiently clear. And since the parties have both extensively 

briefed the underlying judgment, Rustam Guiv does not face any

measurable prejudice. See Nat’l Ecological Found. v. Alexander, 

496 F.3d 466, 477 (6th Cir. 2007) (affirming that an appeal of a 

motion for reconsideration preserves general appellate review so 

long as parties “fully argued the merits of the prior orders”).

Accordingly, we will apply the typical de novo standard of 

review where required. 

We also note that Virginia supplies the substantive law 

here since the district court was sitting in diversity. See

Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 118 

(4th Cir. 2004) (“In a diversity case, we must consult state law 

to determine the nature of the litigant’s rights . . . .”).
14

III.

The Center contends that the district court was required to 

remand this case to the Virginia state court because Rustam Guiv 

failed to prove the diversity of citizenship necessary to 

establish federal subject matter jurisdiction. In its view, 

deficiencies in Rustam Guiv’s proffered evidence made it 

“impossible for the District Court to decide whether [complete] 

diversity existed.” Opening Br. 29. As a result, removal “was 

in error.” Id. at 37. 

The Center is correct that Rustam Guiv bears the burden of 

proof, by a preponderance of the evidence, to show the parties’

citizenship to be diverse. See Mulcahey v. Columbia Organic 

Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“The burden of 

establishing federal jurisdiction is placed upon the party 

seeking removal.”). However, the case presents a threshold 

question that both sides largely ignored in their briefs –- how 

is the citizenship of a trust such as Rustam Guiv to be 

determined for purposes of diversity jurisdiction? The 

resolution of this initial inquiry determines the evidentiary 

factors a court should consider in the jurisdictional analysis. 

A.

Despite over two centuries of federal litigation involving 

trusts, the method for determining a trust’s citizenship was 

long unsettled and the subject of much debate. See Americold, 
15

136 S. Ct. at 1016 (“[C]onfusion regarding the citizenship of a 

trust is understandable and widely shared.”). Two Supreme Court 

cases in particular gave rise to a divergence in lower-court 

decisions on this issue: Navarro Savings Ass’n v. Lee, 446 U.S. 

458 (1980), and Carden v. Arkoma Associates, 494 U.S. 185

(1990).

In Navarro, the individual trustees of a business trust, 

suing in their own names, brought an action for breach of 

contract. 446 U.S. at 459-60. The defendants disputed 

jurisdiction, arguing that the trust’s beneficiaries, and not 

the trustees, were the real parties to the controversy and their

citizenship should control. The question presented was whether 

“trustees of a business trust may invoke the diversity 

jurisdiction of the federal courts on the basis of their own 

citizenship, rather than that of the trust’s beneficial 

shareholders.” Id. at 458. After looking at the role of the 

trustees and beneficiaries with respect to the trust, the Court 

found that “a trustee is a real party to the controversy for 

purposes of diversity jurisdiction when he possesses certain 

customary powers to hold, manage, and dispose of assets for the 

benefit of others.” Id. at 464. The Court concluded, “trustees 

who meet this standard [may] sue in their own right, without 

regard to the citizenship of the trust beneficiaries.” Id. at 

465–66.
16

Although Navarro involved an action brought in the name of 

individual trustees, it was generally read to imply that when a 

trustee “possesses certain customary powers to hold, manage, and 

dispose of assets for the benefit of others,” id. at 464, a 

court should refer only to the citizenship of the trustee to 

determine the trust’s citizenship, see Ind. Gas Co. v. Home Ins. 

Co., 141 F.3d 314, 318 (7th Cir. 1998). 

A decade later, in Carden, the Supreme Court offered 

additional directions on this issue. In that case, a limited 

partnership brought a contract claim in district court on the 

basis of diversity jurisdiction. Carden, 494 U.S. at 186. The 

partnership contended that, like corporations, its citizenship 

should be determined with reference to the state in which it was 

organized or, alternatively, with reference to the citizenship 

of its general partners only. Id. at 187-96. The Court 

disagreed, holding that “diversity jurisdiction in a suit by or 

against [an artificial] entity depends on the citizenship of all 

the members.” Id. at 195. In articulating this “all the 

members” rule, the Court explicitly distinguished Navarro: 

“Navarro had nothing to do with the citizenship of the ‘trust,’

since it was a suit by the trustees in their own names.” Id. at 

192-93. The Court further emphasized that Navarro concerned the 

distinct question of whether the trustees in that action “were 

the real parties to the controversy.” Id. at 191.
17

Lower courts interpreted these cases in very different 

ways. Some courts, relying on Navarro, concluded that a trust 

has the citizenship of its trustees. See, e.g., Mullins v. 

TestAmerica, Inc., 564 F.3d 386, 397 n.6 (5th Cir. 2009). 

Following Carden, other courts held the view that the 

citizenship of a trust depends on the citizenship of its 

trustees and beneficiaries, as they are analogous to being the 

“members” of the trust. See Emerald Inv’rs Tr., 492 F.3d at 201 

(“[D]iversity jurisdiction by or against an artificial entity 

depends on the citizenship of ‘all the members.’”).5 In the case 

at bar, the district court followed the latter approach and 

looked at the citizenship of both the trustees and beneficiaries 

of Rustam Guiv to determine diversity. The Supreme Court 

granted certiorari in Americold Realty Trust v. ConAgra Foods, 

Inc., 136 S. Ct. 1012 (2016), ostensibly to resolve this circuit 

split.

Americold involved a real estate investment trust which, 

under the applicable state law, was deemed owned and controlled 

by its “members,” the equivalents of a corporation’s 

shareholders. However, “as Americold [wa]s not a corporation, 

 5 Corporations are treated differently by statute as 

distinct legal persons. See 28 U.S.C. § 1332(c) (recognizing 

that corporations are a distinct entity which “shall be deemed 

to be a citizen of every State and foreign state by which it has 

been incorporated and of the State or foreign state where it has 

its principal place of business”). 
18

it possesse[d] its members’ citizenship.” Id. at 1015 (noting 

that under 28 U.S.C. § 1332(c) only corporations “should also be 

considered a citizen of the State where it has its principal 

place of business”). For such unincorporated entities, the 

Supreme Court adhered to the “oft-repeated rule that diversity 

jurisdiction in a suit by or against the entity depends on the 

citizenship of all its members.” Id. 

The Supreme Court rejected Americold’s argument that 

Navarro called for the opposite conclusion. The Court again 

“reminded litigants” that “Navarro had nothing to do with the 

citizenship of a trust.” Americold, 136 S. Ct. at 1016. 

“Rather, Navarro reaffirmed a separate rule that when a trustee 

files a lawsuit in her name, her jurisdictional citizenship is 

the state to which she belongs -- as is true of any natural 

person.” Id. Perhaps in dicta, the Supreme Court went on to 

note that when a trustee of “a traditional trust” files a 

lawsuit or is sued in her own name, “there is no need to 

determine its membership, as would be true if the trust, as an 

entity, were sued.” Id. (emphasis added).

Having settled the diversity of citizenship question for 

real estate investment trusts, perhaps the Supreme Court in 

Americold intended this statement to globally resolve the issue 

for other trusts. However, the statement may generate as many 

questions as it answers. Putting aside the lack of a 
19

comprehensive definition of a “traditional trust,” the “as would 

be true if the trust, as an entity were sued” phrase seems open 

to several interpretations. 

For example, does the phrase mean that there is no need to 

determine entity membership for diversity purposes when a 

“traditional trust” is sued as an entity? Or do we read the 

statement to mean that a trust sued as an entity must prove

entity membership because it is a separate legal person from the 

individual trustees? We need not resolve those questions now, 

however, as the record here reflects diversity exists whether 

the trustees, the trust beneficiaries, or both are the subject 

of the citizenship requirement. 

It is clear from the record evidence that the trustees are 

residents of other states and not Virginia. Although The Center 

contends Rustam Guiv’s evidence on this point is insufficient, 

the district court found it credible, and The Center has offered 

no contradictory evidence. The Center’s arguments go to two 

areas -- witness credibility and the weight of the evidence --

where we defer to the findings of the trier of fact when 

substantial evidence in the record supports those findings. See

Sligh v. Doe, 596 F.2d 1169, 1171 n.9 (4th Cir. 1979) (“It is 

plain that the ‘clearly erroneous’ rule applies to 

jurisdictional . . . determinations.”); U.S. ex rel. Vuyyuru v. 

Jadhav, 555 F.3d 337, 348 (4th Cir. 2009) (“We review a district 
20

court’s jurisdictional findings of fact . . . under the clearly 

erroneous standard of review and any legal conclusions flowing 

therefrom de novo.”). This record contains substantial 

evidence, and we find nothing erroneous, much less clearly 

erroneous, in the district court’s conclusion that Rustam Guiv 

proved by a preponderance of the evidence the trustees’

diversity of citizenship from The Center.6

Moreover, the record does not establish any beneficiaries 

of the Rustam Guiv trust in Virginia. Rustam Guiv proffered it 

had no beneficiaries in Virginia. In response, The Center 

contended there were two Virginia beneficiaries: itself and 

Fairfax County. 

The Center, however, is not a trust beneficiary; it is 

simply a tenant in a landlord/tenant business relationship with 

 6 The Center posits that Rustam Guiv’s affidavits are 

insufficient because they contain evidence of the trustee’s 

residence, which is not the same as citizenship. It is true 

that residency and citizenship are not interchangeable in the 

jurisdictional context. See Axel Johnson, Inc. v. Carroll 

Carolina Oil Co., 145 F.3d 660, 663 (4th Cir. 1998) (“As the 

Supreme Court has consistently held, however, state citizenship 

for purposes of diversity jurisdiction depends not on residence, 

but on national citizenship and domicile.”). But The Center is 

mistaken that the evidence here is inadequate to establish 

citizenship. Physical presence coupled with residency is prima 

facie proof of citizenship, see Krasnov v. Dinan, 465 F.2d 1298, 

1300 (3d Cir. 1972), and Rustam Guiv has shown more than that 

here through its affidavits and other evidence. Without 

something to cast doubt on this evidence, the district court did 

not err by accepting these facts as adequate to establish the 

trustees’ citizenship. 
21

Rustam Guiv. And The Center did not contend otherwise below,

where its argument was that the lease was cancelled by the MOU. 

Neither is Fairfax County a trust beneficiary. The Center 

posits that by granting storm water and public street easements 

to the County, as required by local code for the development of 

the property, Rustam Guiv somehow created a beneficiary

relationship status despite The Center’s concession that “[i]n 

exchange, [Rustam Guiv] received a density credit.” Opening Br. 

38. The Center cites no precedent or statute for its argument

and with good reason. Compliance with required subdivision 

ordinances or building codes by a trust owning real property 

confers no beneficiary status on the government entity any more 

so than would payment of real estate taxes. This is 

particularly true here where Rustam Guiv received an asset, a 

density credit, in exchange for the easements. Accordingly, we 

find no error in the district court’s determination that Rustam 

Guiv had no trust beneficiaries in Virginia. 

Whether Americold has resolved “confusion among the Courts 

of Appeals regarding the citizenship of unincorporated entities”

we leave to others to answer. 136 S. Ct. at 1015. In this 

case, regardless of the test applied, Rustam Guiv met its burden 

to prove diversity of citizenship. Thus, the district court did 

not err in concluding it had subject matter jurisdiction. 
22

IV.

We now turn to the merits. The district court concluded 

that the lease amendment was binding and that The Center 

breached the lease by failing to construct a temple on the 

Vienna property before the final deadline. Consequently, the 

court granted summary judgment in favor of Rustam Guiv. The 

Center raises a host of challenges to this judgment, none of 

which are meritorious.

A.

Initially, The Center argues that inconsistent and 

conflicting testimony from Rustam Guiv’s witnesses created 

“issue[s] of fact which can only be determined at trial.” 

Opening Br. 44. In the Center’s view, “when there is a conflict 

in the testimony and an issue as to the veracity of the 

witnesses, summary judgment is not proper.” Id. at 41. 

While conflicting testimony can indeed preclude summary 

judgment, any inconsistency must concern a material fact. As 

the Supreme Court has explained, the mere existence of a factual 

dispute “will not defeat an otherwise properly supported motion 

for summary judgment; the requirement is that there be no 

genuine issue of material fact.” Anderson v. Liberty Lobby 

Inc., 477 U.S. 242, 247-48 (1986).

In its effort to establish a contested issue of material 

fact, The Center first points to conflicting testimony regarding 
23

who drafted the lease amendment. According to The Center, this 

inconsistency concerns a “key point” that a factfinder should 

have resolved. Opening Br. 21. However, on the record in this 

case, who drafted the lease amendment is irrelevant. This 

document is unambiguous and its contents uncontested. Any 

inconsistency about its authorship thus has no bearing here. 

See Martin & Martin, Inc. v. Bradley Enters., Inc., 256 Va. 288, 

291 (1998) (“In the event of an ambiguity in the written 

contract, such ambiguity must be construed against the drafter 

of the agreement.”); Lexicon, Inc. v. Safeco Ins. Co. of Am., 

436 F.3d 662, 671 (6th Cir. 2006) (explaining that “it may be 

relevant which party drafted” an agreement when it is 

ambiguous).

The Center next suggests that, because Dr. Jahanian 

referred to the MOU as a binding agreement, the district court

should have submitted this issue to the jury instead of 

unilaterally deciding it was “too vague to be enforceable.” 

J.A. 1170. This argument suffers from the same deficiency noted 

above: Whether a written contract is sufficiently definite is a 

question of law that we determine from looking at the document. 

See Williams v. Dynatech Commc’ns, Inc., 163 F.3d 600, 604 (4th 

Cir. 1998). Hence, Dr. Jahanian’s statements about the MOU, 

even if inconsistent, are not relevant.
24

Finally, to the extent The Center suggests that Dr. 

Jahanian’s credibility created a material issue of fact to 

preclude summary judgment, that argument also fails. Where the 

determination of what actually happened depends on an assessment 

of the credibility of the respective witnesses, “[t]his 

assessment is a disputed issue of fact [that] cannot be resolved 

on summary judgment.” Rainey v. Conerly, 973 F.2d 321, 324 (4th 

Cir. 1992). But this case does not turn on the credibility of 

Dr. Jahanian or any other witness. Quite the opposite, this

controversy arises from the unambiguous written terms of a 

landlord-tenant arrangement. Thus, the dispute is governed by 

the legal import of the terms of that agreement, not the 

credibility of ancillary witnesses. 

Although this case involves a complicated and lengthy 

lessor-lessee relationship, it is fundamentally a contract 

dispute governed by the parties’ agreements. As such, 

conflicting testimony and credibility issues, like those The 

Center raises, are not material here and are not a ground upon 

which the district court judgment can be disturbed.

B.

The Center also argues that the district court erred by 

enforcing the terms of the lease amendment to the exclusion of 

the MOU. As this argument goes, “the MOU was intended to, and 

did in fact, supersede the Lease Amendment,” and so “[t]he 
25

District Court’s finding that [The Center] breached the subject 

Lease, as [a]mended, by failing to timely construct the [temple] 

on the lease property was in error.” Opening Br. 21-22. The 

district court rejected this argument, finding the MOU was 

unenforceable as a matter of law. We agree.

The basic requirements for a valid contract are well 

settled. “[A]n agreement must be definite and certain as to its 

terms and requirements; it must identify the subject matter and 

spell out the essential commitments and agreements with respect 

thereto.” Progressive Const. Co. v. Thumm, 209 Va. 24, 30-31

(1968). In practical terms, a contract “must be sufficiently 

definite to enable a court to give it an exact meaning, and must 

obligate the contracting parties to matters definitely 

ascertained or ascertainable.” Smith v. Farrell, 199 Va. 121, 

128 (1957).

The MOU is not sufficiently definite to be enforceable. It

does not refer either explicitly or implicitly to the lease, the 

Vienna property, or the nature of the parties’ relationship. As 

the district court found, were it not for the extensive history 

between the parties, this document would be unenforceable on its 

face. See W.J. Schafer Assocs. v. Cordant, Inc., 254 Va. 514, 

519 (1997); Stanley’s Cafeteria, Inc. v. Abramson, 226 Va. 68, 

73 (1983). But even considering how the document arose, it is 

not possible to decipher what mutual obligations exist. The 
26

most definite clauses outline broad tasks for The Center to 

complete by deadlines to be mutually agreed upon in the future. 

Such “agreements to agree” are uniformly unenforceable in 

Virginia. Allen v. Aetna Cas. & Sur. Co., 222 Va. 361, 363 

(1981); see also EG&G, Inc. v. Cube Corp., No. 178996, 2002 WL 

31950215, at *6-7 (Va. Cir. Ct. Dec. 23, 2002) (“[W]here the 

evidence is that the parties merely agreed to make an agreement 

in the future, and where a determination of the terms and 

conditions under which the obligation would be assumed are vague 

and uncertain, Virginia law treats such agreements as 

unenforceable ‘agreements to agree.’” ). 

Even assuming the MOU was binding and enforceable, The 

Center still cannot prevail. Nothing in the MOU eliminates or 

alters the dispositive deadlines that The Center breached in the 

lease amendment. At most, it states the parties would later 

agree on different deadlines, which never occurred. Therefore,

the MOU had no effect on the lease and lease amendment or The 

Center’s breach of those obligations.

C.

The Center next argues that the doctrine of equitable 

estoppel precluded Rustam Guiv from enforcing the lease 

amendment’s deadlines because Dr. Jahanian directed The Center 

to stop construction. The Center maintains that it “did, in 

fact, cease its efforts” and so “[t]o allow RGF to now seek to 
27

use the deadline of the [l]ease [a]mendment as a basis to 

declare the [l]ease terminated would be a gross miscarriage of 

justice.” Opening Br. 48-49. 

We agree with the district court that the doctrine of 

equitable estoppel has no application here. To prevail on this 

claim, The Center was required to show “(1) a representation, 

(2) reliance, (3) change of position, and (4) detriment.” 

Princess Anne Hills Civic League, Inc. v. Susan Constant Real 

Estate Trust, 243 Va. 53, 59 (1992). This doctrine is “applied 

rarely and only from necessity,” and the moving party must prove 

“each element by clear, precise, and unequivocal evidence.” Id. 

Even viewing the record in The Center’s favor, it fails in 

its burden of proof on the final two elements. Nothing suggests 

The Center materially changed its position in light of Dr. 

Jahanian’s statements or Rustam Guiv shifting its focus to the 

Maryland site. In fact, The Center sent a formal letter 

outlining its decision to ignore Rustam Guiv and “stay on 

course.” J.A. 473. The same letter further notes that The 

Center only “temporarily stopped the progress of [its] work.” 

Id. As the district court rightly concluded, this admittedly 

“brief pause, resulting in no material change in [The Center’s]

position, cannot be said to represent detrimental reliance.”

Id. at 1173. 
28

The Center now counters that it could not resume 

construction immediately but had to wait until April 2011 to 

renew efforts with the help of Rustam Guiv. We are unpersuaded 

this alters the outcome. Even accepting this new timeframe, The 

Center still had at least two years to build the temple, which 

is well within the lease amendment’s schedule. Yet, at the time 

of this litigation, the site remained largely untouched. We 

thus conclude, to the extent The Center was unable to proceed, 

this brief period would not have prevented The Center from 

complying with the lease amendment’s obligations. 

At bottom, the record suggests that The Center simply 

failed to meet its obligations and sat on its hands in the face 

of looming contractual deadlines. Having failed to fulfill its 

side of the bargain due to this inactivity, The Center cannot 

look to equity to avoid the effects of its own breach.

D.

In its last volley, The Center argues for the first time 

that it did not breach the lease amendment because there was a 

temple on the property by the final deadline.7 According to The 

 7 During oral argument, counsel represented to the Court 

that this point was raised below and thus we can consider it de 

novo on appeal. The record does not support counsel’s claim. 

Although The Center did mention that it renovated an existing 

building on the property that was then used for prayer services, 

J.A. 1136, nowhere was it further argued that this action was 

sufficient to satisfy the lease obligations. On the contrary, 

(Continued)
29

Center, it “renovated a building on the Vienna [p]roperty which 

was actively being used as a Zoroastrian worship center and 

meeting place.” Opening Br. 50.

Issues raised for the first time on appeal are generally 

not considered by this Court. See Singleton v. Wulff, 428 U.S. 

106, 120 (1976); United States v. One 1971 Mercedes Benz 2–Door 

Coupe, 542 F.2d 912, 915 (4th Cir. 1976) (explaining that the 

failure to raise and preserve an issue in district court 

ordinarily waives consideration of that issue on appeal). 

Although we have occasionally departed from this general rule, 

The Center has failed to raise any argument that such 

exceptional circumstances are present here. See In re Under 

Seal, 749 F.3d 276, 285 (4th Cir. 2014) (“When a party in a 

civil case fails to raise an argument in the lower court and 

instead raises it for the first time before us, we may reverse 

only if the newly raised argument establishes fundamental error 

or a denial of fundamental justice.”). On this record, we find 

the claim waived.

 

The Center repeatedly conceded that it never fulfilled the lease 

amendment’s final construction deadline. Id. at 941, 1102. The 

Center instead opted to continue with its theory that compliance 

was irrelevant because this document was null and void. See id.

at 1150-56. 
30

V.

Having found none of The Center’s challenges to the 

district court’s judgment to be meritorious, we turn to the 

award of attorneys’ fees. The Center’s principal argument here 

is that the court erred by allowing Rustam Guiv “to recover fees 

for all services performed in the litigation, not just those 

[claims] on which it did, in fact, prevail.” Opening Br. 51. 

We generally review a district court’s decision awarding or 

denying attorneys’ fees for abuse of discretion. McAfee v. 

Boczar, 738 F.3d 81, 88 (4th Cir. 2013). Under this standard, 

reversal is appropriate only if “the district court [was] 

clearly wrong or has committed an error of law.” Id. That 

said, legal determinations justifying an award, such as whether 

the plaintiff is a prevailing party, are reviewed de novo. 

Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002). The parties 

agree that Virginia supplies the substantive law here since the 

district court was sitting in diversity.

The lease specifies that “[i]n the event of any litigation 

between the parties hereto, the prevailing party in such 

litigation shall be entitled to recover from the other party its 

costs, expenses and reasonable attorney’s fees.” J.A. 47-48. 

The Center appears to concede that Rustam Guiv is the prevailing 

party under this provision. We agree. As the Virginia Supreme 

Court has explained, the “prevailing party” is “the party in 
31

whose favor the decision or verdict in the case is . . . 

rendered.” Sheets v. Castle, 263 Va. 407, 414 (2002). The 

reviewing court is to consider “the general result” of the case 

and determine “who has, in the view of the law, succeeded in the 

action.” Id. The Center brought this action to enforce a 

contract between the parties, and Rustam Guiv defended on 

grounds that the agreement was terminated by The Center’s 

breach. The district court ultimately entered judgment in favor 

of Rustam Guiv, clearly making it the prevailing party. See

Chase v. DaimlerChrysler Corp., 266 Va. 544, 548-49 (2003) 

(equating “prevailing party” with “successful party”).

Prevailing party status does not, however, automatically 

make that party eligible for all the fees they request. In 

Virginia, “each party [has] the burden of establishing, as an 

element of its prima facie case, that the attorneys’ fees it 

seeks are reasonable in relation to the results obtained and 

were necessary.” Chawla v. BurgerBusters, Inc., 255 Va. 616, 

624 (1998). Moreover, “[n]either party shall be entitled to 

recover fees for duplicative work or for work that was performed 

on unsuccessful claims.” Id. It is well-settled in Virginia 

that “under contractual [fee-shifting] provisions a party is not 
32

entitled to recover fees for work performed on unsuccessful 

claims.” Ulloa, 271 Va. at 82.8 

Although Rustam Guiv prevailed below, it was not wholly 

successful. In particular, the district court rejected one of 

its counterclaims and ruled in favor of The Center. 

Consequently, Rustam Guiv was barred from recovering “fees for 

. . . work that was performed on [this] unsuccessful claim.” 

Chawla, 255 Va. at 624. The district court, however, never 

narrowed the fee award to account for the ruling against Rustam 

Guiv. Absent some discount or reduction for this unsuccessful 

counterclaim, the court’s fee award includes time spent on 

matters for which Rustam Guiv was not entitled to recover under 

Virginia law. See Ulloa, 271 Va. at 82. Accordingly, we vacate

and remand the district court’s attorneys’ fee award for further 

proceedings in accordance with this opinion.

VI.

The record shows that The Center breached the parties’

lease by failing to complete construction of the required

religious center by the lease deadline. We therefore agree with 

 8 Federal courts take a different approach on federal claims 

by allowing a prevailing party to recover fees for unsuccessful 

claims where the entire case “involve[s] a common core of facts 

or . . . related legal theories.” Hensley v. Eckerhart, 461 

U.S. 424, 435 (1983). The Virginia Supreme Court, however, has 

steadfastly rejected this approach. See Ulloa, 271 Va. at 83.
33

the district court that Rustam Guiv was entitled to summary 

judgment. Consequently, we affirm the district court’s judgment 

on the merits. However, for the reasons outlined above, we 

vacate the district court’s attorneys’ fee award and remand for 

further proceedings consistent with this opinion. 

AFFIRMED IN PART, 

VACATED IN PART, 

AND REMANDED