Every Tuesday, the Court of Appeals hands down its published and unpublished opinions. And every Tuesday, those unpublished opinions seem to include a least a case or two where the court summarily affirms because the appellant has failed to ensure that the record includes a transcript or written statement of facts.
Now, some of these results I can understand. If you’re appealing an evidentiary ruling without a transcript or written statement, then good luck proving that the trial court abused its discretion. And I suspect that the CAV sees a healthy number of hopeless pro se appeals in which an incomplete record is the least of the appellant’s concerns.
But sometimes, the court will use this basis affirm a purely legal ruling like a judgment sustaining a demurrer or granting summary judgment, in a case with grown up lawyers. In fact, they did just that last Thursday in Oliver v. Kimberly A. Pinchbeck, P.C.
Oliver affirmed a grant of summary judgment in favor of the plaintiff, and it did so without oral argument because the appellant had not filed a transcript or written statement of facts. Now, as the Oliver court rightly observes, it’s the appellant’s burden to provide the court with a record sufficient to determine if the trial court erred. And as the CAV points out, Rule 5A:8(b)(4)(ii) says, “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 will not be considered.”
So leaning on these principles, the Oliver court held that “[t]o conduct a de novo review of summary judgment, this Court must review both the written pleadings and the positions asserted at oral argument.” That was because
The circuit court heard argument on summary judgment on November 2, 2022. Oliver did
not provide a transcript or a written statement of facts regarding what specific arguments the parties presented to the circuit court and what legal authority supported their positions. In rendering judgment, the circuit court relied upon not only the pleadings and briefs, but also the arguments and evidence presented at that hearing.
The reference to “evidence presented” at a summary judgment hearing has me lost; that’s not really how I understand summary judgment hearings to work. So maybe something bonkers took place that justifies the result.
But let’s bracket any procedural shenanigans for now and look at the rest of the argument, because I just don’t buy it. That is, I’m not convinced that to review a judgment granting summary judgment de novo, the court needs a transcript or written statement outlining the arguments that the parties made at the hearing.
Now, it certainly might need that information, if (say) the appellant were relying on a position she took at oral argument. But I don’t think that it’s categorically necessary. The briefs and pleadings should usually be sufficient to show that the appellant gave the trial court a fair chance to rule intelligently on the issue. After all, the CAV’s job isn’t to decide if the trial court was right to rely on an argument that the appellee made at the hearing. It’s to decide whether the result below was correct, period. If the trial court is right for the wrong reason, it still gets affirmed.
The typical rejoinder is that the court needs a transcript or written statement to be sure that the appellant didn’t concede her case away at oral argument. That seems a bit of a stretch. The motions and briefing offer prima facie evidence of the parties’ arguments below. It’s unreasonable to infer from a missing transcript that the appellant affirmatively waived those points. If you can see from the material already in the record that the appellant preserved her appeal points, that should be sufficient unless the appellee argues affirmative waiver (consistent with 8.01-271.1., of course). And even then, I’m not sure that the burden shouldn’t be on the appellee to come forward with a written statement supporting what is, in essence, an affirmative defense.
This isn’t just a theoretical issue. Lots of experienced lawyers will tell you that you don’t need a court reporter for a hearing on a purely legal issue like a demurrer or a motion for summary judgment.* Under the CAV’s current practice, they’re wrong. Twice in the past year, I’ve come in on appeal had to file written statements saying things like “there were some unreported hearings and stuff, but everyone argued consistent with their written pleadings and no evidence was taken.” I’m not sure that added much to the analysis. Given the procedural headaches written statements entail, it certainly cost my clients a nontrivial amount of money.
But as long as CAV maintains its current approach, I don’t have a better solution.
* This is a longstanding urban legend of Virginia law. For God’s sake, people, if a matter is important enough to merit a hearing, it’s important enough to hire a court reporter.