                                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.
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.




                               2
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.


                                             3
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




                                        4
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.


                                            5
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

                                             6
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 in-

person 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]


                                7
              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


                                             8
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.



                                             9
                                        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,

                                        10
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


      4Although 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.


                                              11
(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

                                              12
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 . . . .”).




                                       13
                                           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,

                                            14
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.

                                              15
       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.

                                           16
        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”).


                                              17
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

                                                 18
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

                                       19
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.


                                             20
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.



                                         21
                                                  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

                                                  22
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.



                                                23
      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

                                               24
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

                                      25
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

                                               26
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.



                                              27
       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)
                                             28
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.


                                        29
                                            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

                                            30
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




                                            31
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.


                                                32
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




                                    33
