Litigation Procedure and Law - § 8-1 (F) - § 8-1 (H)

(F) Notice

2011---Dover v. Walker, Va. Ct. of Appeals, Unpublished, No. 0142-11-4
Court of Appeals dismissed guardian ad litem's appeal because guardian failed to provide father, who was an indispensible and necessary party to the matter, with a copy of the guardian's notice of appeal, pursuant to Rule 5A:6(d).

2011---Chavis v. Hopewell Dept. of Soc. Srvc's, Va. Ct. of Appeals, Unpublished, No. 1762-10-2
The circuit court did not err in dismissing mother's appeal of juvenile court orders approving the removal of her children from her and the placement of the children for adoption. Though mother filed notices of appeal from the juvenile court's adjudicatory orders finding that she had abused and neglected the children, those orders are not final orders for purposes of appeal, because they are not entered pursuant to Va. Code §16.1-278.2. When mother subsequently failed to file notices of appeal for the court's dispositional orders, entered over a month after she noted her appeal to the adjudicatory orders, she lost her right to appeal the case.

2010---Leake v. Taylor, Va. Ct. of Appeals, Unpublished, No. 0737-09-4
Trial court did not err in failing to dismiss wife's appeal of a juvenile and domestic relations district court order of spousal support where wife initially noted an appeal of the ruling before the written order was entered, said appeal was dismissed because it was not accompanied by an appeal bond, and wife then properly noted an appeal of the written order after its entry and paid the requisite appeal bond. When the juvenile court did enter its written order, wife's otherwise premature appeal became effective, as “any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”Saunders v. Commonwealth, 12 Va. App. 154 (1991) (quoting Lemke v. U.S., 346 U.S. 325 (1953)). The statutory purpose behind requiring a timely notice of appeal is to afford the opposing party ample time to prepare for the appeal, and wife's premature filing in this case did not undermine that purpose.

2010---McCoy v. McCoy, 55 Va. App. 524
When a party files a notice of appeal, that notice effectively transfers jurisdiction from the lower court to the appellate court. When an appellate court acquires jurisdiction over the parties involved in litigation and the subject matter of their controversy, the jurisdiction of the trial court from which the appeal was taken ends.
Trial court erred in vacating an order of contempt after a notice of appeal of that order had been filed with the Court of Appeals.

2009---Haring v. Haring, Va. Ct. of Appeals, Unpublished, No. 1085-08-4
Mother's appeal not dismissed where her Notice of Appeal mistakenly referred to two orders suspending the final judgment of the trial court rather than the final order itself. Neither Rule 5A:6(a) nor prior case decisions mandate dismissal of an appeal when an error of “reference” rather than the timeliness of the filing of the appeal is at issue. Rules governing a notice of appeal are designed to protect the appellee, not to penalize the appellant. Because the notice filed by mother provided sufficient notice to father that the litigation was continuing, dismissal based on her mistaken reference is unwarranted.

2005---Sharma v. Sharma, 46 Va. App. 584
Neither the J&DR court nor the circuit court judge is required to determine whether an appellant intends to appeal only a portion of a court's rulings and order.

2004---Yopp v. Hodges, 43 Va. App. 427
The mother's failure to provide the guardian ad litem in a custody and visitation case with a copy of her notice of appeal pursuant to Rule 5A:6 did not deprive the Court of Appeals of the subject matterjurisdiction and authority to hear the appeal. By making the appointment of a guardian in a custody case a matter of judicial discretion (see Va. Code §16.1-266(E)), the legislature has determined that the appointment and presence of a guardian in a custody case, while permissible, is not required. Thus, it cannot be said that the guardian is an “indispensible” or “necessary” party to the proceedings, and thus, failure to provide the guardian a copy of the notice of appeal does not require a dismissal of the appeal. The Court of Appeals distinguished this case from Hughes v. York County Dep't of Soc. Services, 36 Va. App. 22 (2001), wherein a party's failure to provide the guardian with a copy of the notice of appeal in a termination of parental rights case was held to have deprived the Court of Appeals of the jurisdiction to hear the matter. Because Va. Code §16.1-266(A) requires a court to appoint a guardian in termination of parental rights cases, the guardian becomes an indispensable party to such suits.

2002---Zhou v. Zhou, 38 Va. App. 126
Va. Code §8.01-428(c) gives the trial court authority to extend the deadline for filing an appeal where the party has not been given notice of the entry of the final order.

2001---Hughes v. York County, 36 Va. App. 22
Appeal dismissed where guardian ad litem not given copy of notice of appeal or opening brief.

1996---Gifford v. Dunkum, Va. Ct. of Appeals, Unpublished, No. 0122-95-2
Trial court properly denied father's motion to dismiss mother's appeal, which father had based upon mother's failure to list the child in the style of the case on her notice of appeal. The case number on the notice of appeal matched the juvenile court case number, giving both the court and the parties sufficient notice of the case that was being appealed.

1992 ---Carlton v. Paxton, 14 Va. App. 105,aff’d en banc, 15 Va. App. 265
The appellant’s appeal could be heard even though the appellant’s notice of appeal incorrectly identified the order from which the appellant had appealed. The notice was styled properly, and simply contained an error of reference regarding the date of the entry of the final order being appealed. The appellee conceded that they were aware of the actual order being appealed. Accordingly, under the facts of this case, dismissal for failure to satisfy the rules governing notice of appeal was unwarranted.

(G) Record

2017---Browning v. Browning, Va. Ct. of Appeals, No. 2012-16-3
Although Wife failed to notice counsel of her filing of the trial court’s transcripts in the Court of Appeals or file said notices with the trial court clerk, the striking of the subject transcripts was not warranted in this case. Pursuant to Rule 5A:8(b), the striking of transcripts from the record on appeal is the appropriate sanction for failing to file a notice of filing transcript(s); however, such sanction is imposed only if the appellee suffers material prejudice as a result of the failure to file the notice. Here, Husband did not allege on appeal that he suffered any prejudice from Wife’s failure to file a notice of filing transcripts.

Because Wife failed to timely file a trial transcript with the Court of Appeals, the Court deemed her issues waived and affirmed the trial court’s judgment. The content of the record on appeal is delineated by Rule 5A:7, which provides that the record on appeal includes “the transcript of any proceeding... when made part of the record as provided in Rule 5A:8... .” Rule 5A:8(a), in turn, requires that for a transcript to become a part of the record, it must be “filed in the office of the clerk of the trial court within 60 days after entry of the final judgment.” The sanction for failure to comply with Rule 5A:8(a) is governed by Rule 5A:8(b)(4)(ii), which provides that “[w]hen the appellant fails to ensure that the record contains transcripts... necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered.”

Here, Wife filed the trial transcript with the trial court clerk two days after the Rule 5A:8(a) deadline had run. The fact that the trial judge was in possession of the trial transcript for several years prior to the appeal does not satisfy Rule 5A:8(a)’s requirement that the transcript be timely filed with the trial court clerk. Further, although it is very likely that Husband suffered no prejudice as a result of Wife’s untimely filing of the transcript (he had been aware of and had access to the transcript for several years), under the plain language of Rule 5A:8(a), prejudice is not a relevant inquiry regarding compliance with Rule 5A:8(a); the relevant inquiry is whether the transcript was timely filed and, if the transcript was not timely filed, what effect the absence of the transcript from the record has on the appeal.

The failure to timely file a transcript does not deprive the Court of Appeals of its active jurisdiction to proceed to judgment. Instead, consistent with the language of Rule 5A:8(b)(4)(ii), for any assignments of error for which the arguments contained within the untimely-filed transcript and for which the subject transcript is indispensable to the determination of the issues, those assignments of error are waived on appeal. Here, the appropriate sanction for Wife’s failure to file the trial transcript with the trial court clerk is the striking of the transcript. And because the stricken transcript was of the primary hearing in the case, the Court of Appeals could not resolve Wife’s assignments of error.

2015---Lee v. Commonwealth, Va. Ct. of Appeals, Unpublished, No. 1896-14-2
A statement of facts offered in lieu of a transcript is properly part of the record on appeal where the statement of facts is timely filed in the circuit court, signed by both parties’ attorneys, and signed or initialed by the circuit judge. A stamp with the circuit court judge’s initials indicating that the judge has “seen” the statement of facts on the same day it was filed is sufficient to constitute a signature under Rule 5A:8(c).

2015---Barrett v. Minor, Va. Court of Appeals, Unpublished No. 0173-14-3
The circuit court did not err by failing to include the files of closed juvenile court cases in the record on appeal. Rule 5A:7(a) requires that “the original papers and exhibits filed or lodged in the office of the clerk of the trial court” be included in the record on appeal. The juvenile court’s files were never “filed or lodged” in the circuit court clerk’s office, and although Father might have made those files a part of the record had he submitted them to the circuit court during the pendency of the appeal from the juvenile court, he did not do so.

2014---LaBrie v. LaBrie, Va. Ct. of Appeals, Unpublished, No. 1894-14-2
The Court of Appeals affirmed the trial court’s attorney’s fees award to Wife because the Court was unable to determine from Husband’s appendix whether the award was reasonable. Rule 5A:25(c) requires the appellant’s appendix to include the testimony germane to the questions presented and the exhibits necessary for an understanding of the case. The filing of an appendix that complies with the Rules is essential to an informed collegiate decision. Here, Husband failed to include Wife’s attorney’s fees affidavit in the appendix, which was essential to his appeal because Wife did not testify at trial regarding the attorney’s fees she incurred.

2012---Moncrief v. DCSE, 60 Va. App. 721
Rule 5A:20 requires the appellant to cite to clear and exact pages where his assignment of error was preserved and to reference specific page numbers in the appendix throughout his statement of facts. However these requirements are not jurisdictional, and dismissal of an appeal should not be undertaken without considering whether a party’s failure to adhere strictly to the rule’s requirements is insignificant, or so substantial as to preclude the court’s addressing the merits of the case. Although the appellant cited to the entirety of two transcripts as his references to preservation of error, said transcripts adequately encompassed his arguments and objections as well as the trial court’s ruling. His failure to include specific page numbers, though inconvenient, was not so substantial as to preclude the court from considering the merits, where the total transcripts cited contained only 45 pages.

2012---Byrd v. Byrd, Va. Ct. of Appeals, Unpublished, No. 0572-12-2
The appendix filed by husband failed to include any testimony or other incidents of the case germane to the assignment of error as required by Rule 5A:25. Where the appendix filed does not contain essential parts of the record, the court will not decide the issue.

2010---Soliman v. Soliman, Va. Ct. of Appeals, Unpublished, No. 0030-10-4
Rule 5A:8 requires that any transcripts or written statements of facts necessary to the disposition of the appeal must be made a part of the record and “when the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered.” Failure to comply with Rule 5A:8 constitutes a violation of a non-jurisdictional rule requirement and the Court of Appeals is to treat the underlying issue as waived.

2007---Robinson v. Robinson, 50 Va. App. 189
The burden is upon the appellant to provide the appellate court with a record which substantiates the claim of error. In the absence of a sufficient record the appellate court will not consider the point.

An appellate court must dispose of the case upon the record and cannot base its decision upon appellant's petition or brief or statements of counsel in open court. The appellate court acts only upon facts contained in the record.

2007---Whitney v. Whitney, Va. Ct. of Appeals, Unpublished, No. 2192-06-2
Where Husband failed to raise an issue concerning a pendente lite order in a previous appeal contesting a property distribution order, he is barred from raising the issue in a subsequent appeal related to breach of a marital agreement.

2004 --- Rose v. Jaques, 268 Va. 137
In order for the court to take an issue up on appeal, all of the evidence pertaining to that issue must be properly preserved with the record of the initial proceeding.

2002---Lehman v. Lehman, 38 Va. App. 598
The appellate court can review only the documents in the record of the case on appeal.

2000---Kyhl v. Kyhl, 32 Va. App. 53
Judgment vacated and new trial ordered in case where no court reporter was present and trial court admitted he could not accurately certify facts for appeal.

1992 ---Twardy v. Twardy, 14 Va. App. 651
The Court of Appeals dismissed Husband’s appeal because he represented in his notice of appeal that he would file a transcript, but subsequently failed to do so. Although an appellant has the primary responsibility of ensuring that a complete record is furnished to an appellate court, an appellee also has an obligation to ensure that the appellate record contains the evidence supporting its contention. Nevertheless, an appellee has the right to rely upon an appellant’s statement in its notice of appeal that a transcript will be made part of the record, and the responsibility for failing to provide the transcript as represented necessarily falls upon the appellant.

1992 ---Twardy v. Twardy, Va. Ct. of Appeals, Unpublished, No. 1152-89-2
In an appeal brought by Husband, the court dismissed the action because Husband did not file the transcript of the trial court proceeding after indicating he would in his notice of appeal. Despite defenses by the Husband that a transcript was not required in this particular instance, the court ruled that if evidence was presented at the evidentiary hearing which would support a factual finding Husband’s actions or representations justified the trial court in concluding that Wife was entitled to the judgment, it needed to review the evidence to affirm the ruling, which it could not. Further, Wife was entitled to rely upon the assertion by Husband that he would file the transcript upon which she would need to rely.

1990---Klein v. Klein, 11 Va. App. 155
When evidence is excluded by the court, the aggrieved party must make a proper proffer of the excluded testimony to preserve the ruling for appellate review. The proffer may consist of a unilateral representation of counsel, if unchallenged, or a mutual stipulation of the proffered testimony.

(H) Timely Filing

2018 --- Willett v. Lee, Va. Ct. of Appeals, Unpublished, No. 0286-18-1
The trial court did not abuse its discretion by denying Husband's motion to file an untimely appeal pursuant to Code of Virginia § 8.01-428(C). Husband argued that he lacked notice of the trial court's entry of a final order because the clerk failed to mail the order to him in a timely fashion. Although the clerk may have unreasonably delayed mailing a copy of the final order to Husband, his counsel endorsed the order, and thus was notified for purposes of Code § 8.01-428(C). Further, as noted by the trial court, the clerk had no affirmative statutory requirement to mail the final order to Husband or his counsel.

2014---Wright v. Wright, Va. Ct. of Appeals, Unpublished, No. 0660-14-3
The Court of Appeals of Virginia refused to consider Husband’s assignments of error because Husband failed to perfect his appeal within twenty-one days after the trial court entered the final divorce decree. On the same day the trial court entered the final divorce decree, it entered an order appointing a special commissioner for the sale of marital property. Husband waited to perfect his appeal until after the special commissioner auctioned the property and distributed the proceeds, a process that occurred over a six-month period after the trial court entered the final decree. The special commissioner’s acts, however, were purely ministerial. The trial court fully disposed of the case when it entered the final decree and Husband failed to timely perfect his appeal thereafter.

2013---Gunning v. Gunning, Va. Ct. of Appeals, Unpublished, No. 1140-12-1.
A decree of divorce was a final, appealable order, despite the fact that the order continued the matter on the trial court’s docket for purposes of allowing the court to monitor husband’s compliance with the order and enter subsequent orders to divide retirement accounts. The Court of Appeals held that such matters were “ministerial” in nature and, as such, did not undermine the finality of the order. Since husband did not file a timely notice of appeal to the final order, the Court declined to consider his arguments regarding equitable distribution.

2012---Carrithers v. Harrah, 60 Va. App. 69.
Even if an order granting a final judgment on the merits of a case contains express language indicating that the trial court intends to rule on a request for attorneys' fees at a future time, such language does not negate the fact that such an order is in fact a final judgment. If a trial court wishes such an order not to be a final order, it must include specific language in the order rendering judgment stating that the court is retaining jurisdiction to address matters still pending before the court. A mere indication that the trial court intends to rule on pending motions is insufficient to negate the finality of an order rendering a final judgment on the merits of a case.

The Court of Appeals dismissed for lack of jurisdiction father's appeal of an arrearage judgment where father failed to timely note his appeal within thirty days of the circuit court's denial of his motion, despite the fact that the circuit court's order left the case open to determine attorney's fees and costs related to the motion.

2004 --- Rose v. Jaques, 268 Va. 137
The court did not err in extending the time allowable to note an appeal to a final order, pursuant to Va. Code §8.01-428(C), where neither counsel for the Defendants nor the Defendants themselves were provided notice that the order had been entered until after the appeal deadline had run. If the Court’s file does not contain the order, counsel cannot be deemed to have failed to exercise due diligence under §8.01-428(C) when discovery of that order was not available to the public.

2002---Zhou v. Zhou, 38 Va. App. 126
Va. Code §8.01-428(c) gives the trial court authority to extend the deadline for filing an appeal where the party has not been given notice of the entry of the final order.

1998---Vokes v. Vokes, 28 Va. App. 349
The thirty-day period of Rule 5A:6(a) cannot be tolled by either the filing of a post-judgment motion to set aside or reconsider the judgment or the pendency of such a motion on the thirtieth day after final judgment. In order to toll the limitations of Rule 5A:6(a) and Rule 1:1, the trial judge must do more than merely express a desire to consider action or take the issue under advisement; rather, the trial judge must issue an order modifying, vacating, or suspending the order within twenty-one days of entry. • Statement in final order that father's motion to transfer custody “shall remain on the docket of this court for further hearing” was insufficient to toll the thirty-day period of Rule 5A:6(a), where the trial court expressly stated on the record when entering the order that the sole purpose of the future hearing was to hear “after-discovered evidence” on mother's motion to rehear rather than to rehash that which had already been presented.

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