Shapiro v. Younkin

PRESENT: All the Justices

JOSHUA B. SHAPIRO
OPINION BY
v. Record No. 082607 JUSTICE LEROY F. MILLETTE, JR.
January 15, 2010
FREDERICK YOUNKIN, JR.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Patricia L. West, Judge

In this appeal, we consider whether the trial judge erred

in dismissing with prejudice a plaintiff’s appeal from a general

district court judgment based on the plaintiff’s failure to

obtain the services of a court reporter in contravention of the

circuit court’s general directive that a court reporter be

present at the trial of all civil cases.

BACKGROUND

This case arises out of a landlord-tenant dispute. Because

the facts of the underlying dispute are not pertinent to the

resolution of this appeal, they will not be discussed. The

relevant facts are procedural in nature.

Joshua B. Shapiro filed suit in the General District Court

of the City of Virginia Beach against Frederick Younkin, Jr.

The general district court dismissed Shapiro’s claims with

prejudice. Shapiro, appearing pro se, appealed the decision of

the general district court to the Circuit Court of the City of
Virginia Beach. Trial in the circuit court was set for October

29, 2008.

By final order, the trial judge dismissed Shapiro’s appeal

with prejudice based on Shapiro’s “non-compliance with Court

Rules and Procedures.” Our analysis is not affected by the

circuit court’s purported reliance on its own internal rules and

procedures in rendering judgment in this case. We therefore

need not reach the issue of the validity of the circuit court’s

relevant rules and procedures requiring the presence of a court

reporter to record all civil proceedings.

We note, however, that while Code § 8.01-4 authorizes

circuit courts to prescribe rules to “promote proper order and

decorum and the efficient and safe use of courthouse facilities

and clerks’ offices,” the statute prohibits any such rule which

is inconsistent with any statute or “has the effect of abridging

the substantive rights of persons before such court.” As we

stated in Collins v. Shepherd, 274 Va. 390, 649 S.E.2d 672

(2007), the authority delegated to circuit courts by Code

§ 8.01-4 “must be carefully exercised so that local rules do not

encroach upon statutes, Rules of Court, or case law,” and local

rules must not “deprive any party from having a case heard on

the merits, reflecting the General Assembly’s intention that

local rules govern the administration, but not become the

determining factor in the ultimate outcome, of cases.” Id. at

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399, 649 S.E.2d at 676; see also Martin v. Duncan, 277 Va. 204,

208, 671 S.E.2d 151, 153 (2009).

In this case, Shapiro had failed to comply with a

requirement imposed by the judges of the circuit court that a

court reporter be present at the trial of all civil cases to

record the proceedings, and that a party appealing a case from

the general district court arrange to have a court reporter

present at trial in the circuit court. A footnote in the final

order dismissing Shapiro’s appeal explained that “[p]arties who

wish this requirement to be waived must receive approval from a

judge prior to the trial date,” which Shapiro had not done.

Although Shapiro had not requested a hearing before the

trial date to obtain a waiver of the requirement that he obtain

a court reporter, he requested such a waiver immediately before

the trial began on the ground of indigency. The trial judge

denied Shapiro’s request for a waiver based on the court’s

finding that Shapiro had sufficient funds to pay for the

services of a court reporter. Additionally, the trial judge

concluded that there was “a high likelihood of appeal by the

non-prevailing party and determined that a court reporter was

required in that a statement of facts would be insufficient for

appeal.”

On the day of trial, after his case was dismissed, Shapiro

submitted to the circuit court a proposed written statement of

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facts in lieu of a transcript for purposes of appeal to this

Court. 1 The circuit court refused to certify Shapiro’s statement

of facts. The trial judge wrote directly on the proposed

statement of facts that

[t]he events of this day are reflected in the
court’s order and are sufficient for the appeal.
I do not agree that this document accurately
reflects the events of the day however it does
prove my point that a court reporter would be
needed in this case. Mr. Shapiro may argue
whatever he wants on appeal or mis-state events
in his petition if he so chooses, but I will not
agree that this document go up as the “Statement
of Facts.” The case was dismissed on procedural
grounds which are clearly covered in the order.
No “Statement of Facts” should be necessary on
appeal of a strictly procedural ruling. 2

On appeal to this Court, Shapiro argues that the circuit

court erred by dismissing his case in violation of Code § 17.1-

128, which provides, in pertinent part, that

[i]n all civil cases, the court or judge trying
the case may by order entered of record provide
for the recording verbatim of the evidence and
incidents of trial either by a court reporter or
by mechanical or electronic devices approved by
the court. The expense of reporting and recording
the trial of a civil case shall be paid by the
litigants in the manner and in the proportion as
the court may in its discretion direct. A
transcript of the record, when required by any
party, shall be paid for by such party. The
court on appeal may provide that such cost may,
in civil cases, be reimbursed to the party

1
In Shapiro’s timely filed notice of appeal, Shapiro
certified that he had notified Younkin that a written statement
of facts had been submitted to the circuit court.
2
The trial judge’s handwritten notes were dated “10/29/08”
and initialed “PLW.”

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 prevailing. The failure to secure the services
of a reporter, or the failure to have the case
reported or recorded for any other reason, shall
not affect the proceeding or trial.

(Emphasis added.) Shapiro maintains that the circuit court also

violated Rule 5:11 by refusing to certify his proposed written

statement of facts, which he timely submitted in lieu of a

transcript.

Younkin, also appearing pro se in both the circuit court

and this Court, did not file a brief in opposition to Shapiro’s

appeal in this Court. Instead, he submitted a memorandum to the

Clerk of this Court, in which he stated his position that this

“Court should not hear any arguments other than the procedural

arguments,” because the circuit court “did not address the

merits of the underlying case.”

ANALYSIS

We agree with Shapiro that the trial judge violated both

Code § 17.1-128 and Rule 5:11 in dismissing his case based

solely on his failure to secure the services of a court reporter

for trial. When statutory language is unambiguous, we are bound

by the plain meaning of that language. Britt Construction, Inc.

v. Magazzine Clean, LLC, 271 Va. 58, 62, 623 S.E.2d 886, 888

(2006); Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d

468, 470 (2003). The trial judge’s action directly violated the

unambiguous language and mandate of Code § 17.1-128 that “[t]he

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failure to secure the services of a reporter, or the failure to

have the case reported or recorded for any other reason, shall

not affect the proceeding or trial.” (Emphasis added.)

Manifestly, the trial judge’s dismissal of Shapiro’s case based

on his failure to secure the services of a court reporter

“affect[ed] the proceeding or trial.” Id.

The circuit court’s actions also violated Rule 5:11.

Pursuant to Rule 5:11(c), a party may submit a written statement

of facts, testimony, and other incidents of the case in lieu of

a transcript. Such statement of facts becomes a part of the

record if the procedural requirements enumerated in Rule 5:11(c)

are fulfilled.

Subsection (c)(1) of Rule 5:11 addresses filing and notice

requirements, which are not at issue here. Subsection (c)(2) of

the Rule requires that “the statement [be] signed by the trial

judge and filed in the office of the clerk of the trial court.”

If the parties have endorsed the proposed statement of facts,

the trial judge may sign it immediately. Rule 5:11(c)(2).

However, if a party objects to the accuracy or completeness of

the proposed statement of facts, then the trial judge shall sign

it after complying with the provisions of Rule 5:11(d).

Under Rule 5:11(d), when objections are properly made to

the statement of facts, the trial judge is directed to (1)

overrule the objections, (2) make any corrections that he or she

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finds necessary, (3) include any accurate additions to make the

record complete, or (4) certify the manner in which the record

is incomplete, and (5) sign the written statement.

Additionally, “the trial judge may, after notice to counsel and

hearing, correct the . . . written statement.” Rule 5:11(d).

The purpose of Rule 5:11, in allowing an appellant to file

a statement of facts, testimony, and other incidents of the case

in lieu of a transcript, is to provide an appellant a means to

establish a record for appellate review without incurring the

substantial expense of obtaining a transcript, which for some

appellants may prevent their ability to appeal from an adverse

judgment. Rule 5:11 also provides litigants and trial courts

guidance regarding the actions to take to ensure that the record

on appeal is accurate and complete. We have stated that

[t]o enable us to effectively fulfill our
function of appellate review it is usually
necessary for us to have an accurate transcript
or written statement of the testimony and
incidents of trial in the case before us.
Therefore, we have promulgated Rule 5:11 so that
counsel, or the trial judge on his [or her] own
initiative, may have a simple procedure available
to correct errors of commission or omission in
the transcript or written statement.

Lamb v. Commonwealth, 222 Va. 161, 164, 279 S.E.2d 389, 391

(1981). Thus, under Rule 5:11, a trial judge is authorized to

correct errors or deficiencies on his or her own initiative.

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 We previously have considered cases in which trial judges

have refused to certify proposed written statements of fact. In

Harris v. Woodby, Inc., 203 Va. 946, 128 S.E.2d 278 (1962), we

considered a situation in which the trial judge refused to

certify a party’s “narrative statement of testimony,” finding

that it did “not accurately and completely set forth the

testimony at the time of trial.” Id. at 947-48, 128 S.E.2d at

280. The opposing party objected that the proposed statement

was not accurate and complete, but did not tender an alternative

written statement. Id. at 947, 128 S.E.2d at 280.

We held that although the proposed statement was not

accurate or complete, and the difficulty in preparing a proper

statement likely was due to disagreement of counsel and the

judge as to its contents, it was the trial judge’s duty to

resolve the conflict by “mak[ing] such alterations in and

additions to the . . . statement as w[ould], in his [or her]

opinion, render the same accurate.” Id. at 949, 128 S.E.2d at

280-81. We further held that if a trial judge remains unable to

formulate an accurate statement of the evidence, then the proper

remedy is to order a new trial. Id. at 949, 128 S.E.2d at 281.

Because the trial judge in that case failed to discharge this

duty, we reversed and remanded the case for a new trial. Id.

In Woods v. R.D. Hunt & Son, Inc., 207 Va. 281, 148 S.E.2d

779 (1966), a trial judge refused to certify that a party’s

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“narrative statement of the proceedings including testimony and

evidence of the trial” was an authentic statement of the

proceedings. Id. at 282-83, 148 S.E.2d at 780-81. At a

conference regarding the proposed filing of the narrative

statement, the trial judge informed counsel that he “would

require the transcript of the evidence in th[e] case to be

written up or the same to be agreed upon by the parties,” and

that he could not remember all the material evidence and took no

notes at trial because a court reporter was present at the

trial. Id.

Counsel for the opposing party informed the trial judge

that he could not agree with the proposed narrative statement

because it was incomplete and inaccurate. Counsel accordingly

filed his objections and “reasons for refusal to endorse” the

narrative. He also asserted that in reliance on the court

reporter, he had not taken adequate notes, and was unable to

recall the details of the testimony or the arguments presented

on the technical issues of law considered at trial. Id. at 283,

148 S.E.2d at 781. Under the facts and circumstances of the

case, we held that

[w]here a court reporter is employed during the
trial of a civil case and the trial judge,
relying upon the availability of a transcript,
fails to make adequate notes and cannot recall
the material evidence and incidents of trial in
dispute with accuracy at the time the narrative
statement is presented, he may require the

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 appealing party to provide so much of the
transcript as may be necessary for him to be
assured what he is certifying is authentic.

Id. at 287, 148 S.E.2d at 783.

After stating this principle, we affirmed the circuit

court’s judgment. We concluded that the trial judge’s request

for a transcript was reasonable and that, therefore, the circuit

court did not err in refusing to certify the proposed narrative

statement “or in failing to make alterations in, and additions

to, the statement in an attempt to render it accurate and then

sign it.” Id.

More recently, in White v. Morano, 249 Va. 27, 452 S.E.2d

856 (1995), under facts similar to our decision in Woods, we

held that a trial judge did not err by refusing to sign a

party’s proposed “[w]ritten [s]tatement of the [f]acts,

[t]estimony and [o]ther [i]ncidents of the [c]ase.” Id. at 29,

32, 452 S.E.2d at 857, 859. The two-day jury trial at issue had

included the testimony of 15 witnesses, all of which was

recorded by a court reporter. Id. at 29, 452 S.E.2d at 857.

The appealing party filed a proposed statement of facts, which

was contested by the opposing party as inaccurate and

incomplete. Id.

After the trial judge held a hearing on the objections and

the parties were unable to agree on a narrative statement, the

trial judge filed a “[s]tatement in [l]ieu of [j]udge’s

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[c]ertificate [p]ursuant to Rule 5:11(d) of the Rules of the

Supreme Court of Virginia.” Id. In the trial judge’s statement

in lieu of certification, he stated that the court was unable to

comply with Rule 5:11 because, among other things, he was unable

to recall the details of the testimony of the 15 witnesses. The

trial judge further noted that because a court reporter had

transcribed the proceedings throughout trial, the judge had not

considered it necessary to take meticulous notes. Id. at 29-30,

452 S.E.2d at 858.

Upon considering these circumstances, we determined that

“the trial judge understandably concluded that he could not

remember the facts adduced at trial ‘well enough to certify

appellant’s statement.’” Id. at 31, 452 S.E.2d at 859. We also

observed that the preparation of a full transcript is not always

necessary in order to present an accurate and complete record

for appeal. Id. at 32, 454 S.E.2d at 859. Because there was no

indication in the record that the appealing party attempted to

obtain the trial judge’s assistance in compiling an accurate and

complete record, we held that the circuit court acted reasonably

in refusing to sign the proposed statement of facts, and we

affirmed the circuit court’s judgment. Id.

In the present case, when Shapiro submitted his proposed

written statement of facts, the trial judge did not correct the

proposed statement by making any corrections or additions, nor

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did she certify the manner in which the statement was incorrect

and sign the statement. Instead, the trial judge wrote on the

front of the statement that “[t]he events of this day are

reflected in the court’s order and are sufficient for the

appeal. I do not agree that this document accurately reflects

the events of the day . . . .” The trial judge simply

determined that the final order was sufficient for purposes of

appeal, and “[n]o ‘Statement of Facts’ should be necessary on

appeal” because “[t]he case was dismissed on procedural grounds

which are clearly covered in the order.”

We conclude based on these notations that, at a minimum,

the trial judge should have complied with Rule 5:11 by

certifying the manner in which the record was incomplete and by

signing the proposed statement of facts. Therefore, we hold

that the trial judge erred in failing to comply with Rule 5:11.

We further observe that the present case is unlike our

prior cases in several respects. Here, both parties appeared

before the circuit court pro se. The defendant, Younkin, did

not file any objections to the proposed statement of facts and,

therefore, no hearing on objections was held. Most

significantly, however, this case is different from our prior

cases because the trial judge dismissed Shapiro’s case outright

without taking any evidence, based solely on Shapiro’s failure

to obtain the services of a court reporter.

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 We take this opportunity to emphasize that in the absence

of a written transcript, when a litigant has taken all available

measures to provide the circuit court with an accurate and

complete record of the proceedings, and the trial judge

nevertheless is unable to create a complete written statement

for purposes of appeal after consultation with all parties, the

proper remedy is to order a new trial so that a proper

transcript or statement can be prepared. Harris, 203 Va. at

949, 128 S.E.2d at 281. A circuit court is not authorized to

dismiss a case based solely on a litigant’s failure to obtain

the services of a court reporter, and later to refuse to certify

the litigant’s proposed statement of facts because it is

inaccurate. The trial judge must make an affirmative attempt to

create a record for appellate review that contains a fair

statement of the facts by making “reasonable additions,

deletions, or changes,” or must certify the manner in which the

record is incomplete. New Bay Shore Corp. v. Lewis, 193 Va.

400, 404, 69 S.E.2d 320, 323 (1952); Rule 5:11(d).

For these reasons, we will reverse the circuit court’s

judgment and remand the case to the circuit court for a trial on

the merits.

Reversed and remanded.

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