COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Beales and Senior Judge Clements
UNPUBLISHED
BERNARD L. DINICOLA, JR.
MEMORANDUM OPINION*
v. Record No. 0496-13-4 PER CURIAM
OCTOBER 22, 2013
TARGET CORPORATION
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Bernard L. DiNicola, Jr., pro se, on briefs).
(Nicholas P. Marrone; Semmes, Bowen & Semmes, on brief), for
appellee.
Bernard L. DiNicola, Jr. (claimant) appeals a decision of the Workers’ Compensation
Commission affirming the deputy commissioner’s decision denying his motion to strike and
denying his claim for a spinal injury. Claimant contends (1) the commission erred by finding his
claimed spinal injury was not a result of his October 15, 2004 injury by accident, (2) he was
denied requested “discovery documents” prior to the deputy commissioner hearing, (3) he was
prejudiced by a “wrong date of injury” in the commission’s opinion, (4) he was prejudiced by an
incomplete commission record, and (5) the commission’s opinion “should be considered
voidable” because the full commission was not in place at the time of the ruling.
Claimant, as the appellant in this matter, has the burden of showing that reversible error
occurred below. See Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992).
Under the settled law of this Commonwealth, an appellate court does not “search the record for
errors” or “seek out the substance of all contentions made during the progress of a trial” or a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Workers’ Compensation Commission proceeding. Law v. Commonwealth, 171 Va. 449, 455,
199 S.E. 516, 519 (1938); see also Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237,
239 (1992). Rule 5A:25 thus requires claimant to file an appendix that “should generally contain
everything relevant to the” assignments of error. Reid v. Commonwealth, 57 Va. App. 42, 49,
698 S.E.2d 269, 272 (2010). “The appendix serves this Court to evaluate the merits of [the]
appellant’s assigned error.” Id.
Rule 5A:25(c) provides, in pertinent part, that “[a]n appendix shall include:” “the basic
initial pleading;” “the judgment appealed from, and any memorandum or opinion relating
thereto;” “any testimony and other incidents of the case germane to the assignments of error;”
“the title . . . of each paper contained in the appendix, and its filing date;” and “exhibits
necessary for an understanding of the case . . . .” Furthermore, “[a]s the appellant, [claimant]
had the responsibility of providing this Court with an appropriate appendix” that met the
requirements of Rule 5A:25 and adequately addressed his assignments of error. Robinson v.
Robinson, 50 Va. App. 189, 197, 648 S.E.2d 314, 317 ( 2007). A pro se litigant “is no less
bound by the rules of procedure and substantive law than a defendant represented by counsel.”
Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 657 (1987); see also Francis v.
Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999) (“Even pro se litigants must comply
with the rules of court.”).
However, the appendix that appellant filed in this Court fails to include several
significant documents that are necessary for addressing his assignments of error – and also
includes only small, selective portions of other significant documents that are necessary for our
review. Here, claimant failed to include his initial pleading in the case. He also included only
pages seven and eight of the deputy commissioner’s opinion, and he failed to identify those
pages as such. Similarly, claimant included in the appendix only page nine of the full
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commission’s opinion – the decision from which he is appealing – which appellant also failed to
identify in the appendix. Those pages selected by claimant reflect only a small part of the
analysis conducted below and fail to encompass the deputy commissioner’s or the full
commission’s complete rulings. Claimant did not include his motion to strike, the denial of
which he now complains was error. He also included only part of his April 17, 2012 letter to the
commission purporting to object to the full commission proceeding with his case with a deputy
commissioner appointed to serve on the review panel in place of the absent commissioner.
Claimant has failed to comply with Rule 5A:25 by utterly failing to present this Court with an
adequate appendix from which to address his assignments of error on appeal.
“The appendix is a tool vital to the function of the appellate
process in Virginia . . . . By requiring the inclusion of all parts of
the record germane to the issues, the Rules promote the cause of
plenary justice.” Thrasher v. Burlage, 219 Va. 1007, 1009-10, 254
S.E.2d 64, 66 (1979) (per curiam). Thus, the filing of an appendix
that complies with the Rules, is “essential to an informed collegiate
decision.” Id.
Patterson v. City of Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759, 764-65 (2003).
Under this Court’s decision in Patterson, an appendix filed pursuant to Rule 5A:25 must
include “all parts of the record germane to the issues” on appeal. Id. It is plainly unacceptable
for any litigant who appeals a judgment to file an appendix that fails to include several necessary
documents or to include such little information in the appendix that the appendix becomes
nothing more than a selective editing of what occurred below. Presenting an appendix in such a
deficient manner – and, for example, including only one page of the full commission’s opinion
and ruling from which claimant appeals – contradicts the very purpose of filing an appendix,
which is to bring to this Court’s attention “those items necessary to evaluate whether the trial
court [or the commission] erred.” Reid, 57 Va. App. at 49, 698 S.E.2d at 272. Simply put, it is
not this Court’s “function to comb through the record . . . in order to ferret-out for ourselves the
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validity of [appellant’s] claims.” Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625
n.7 (1988) (en banc).
Accordingly, we find that appellant’s failure to comply with Rule 5A:25 by filing an
adequate appendix is so significant that we cannot and will not consider his arguments on appeal.
See Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008).
Moreover, we note that the full commission’s opinion from which claimant appeals does
not address the issues raised in claimant’s third through fifth assignments of error – i.e., that the
commission opinions included a wrong date of injury, that the commission record is not
complete, and that the full commission improperly proceeded with his case. Under the Supreme
Court of Virginia’s decision in Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587
S.E.2d 546, 548 (2003), if the commission does not address an issue raised by a party, the
aggrieved party should move the full commission for reconsideration in order to obtain a ruling
on that issue and to preserve the issue for appeal. However, claimant did not file a motion for
reconsideration asking that the full commission actually make a ruling on the issues that are now
raised in claimant’s third, fourth, and fifth assignments of error. There was “no reason why
[claimant] could not have given the commission an opportunity to correct th[e] alleged error
prior to appeal.” Overhead Door Co. v. Lewis, 29 Va. App. 52, 62, 509 S.E.2d 535, 539 (1999).
As a result, on appeal to this Court, we have no commission ruling to review on these issues.
Accordingly, appellate review of claimant’s third through fifth assignments of error is
barred by Rule 5A:18. See Williams, 266 Va. at 411-12, 587 S.E.2d at 548. Furthermore,
claimant has not asked this Court to invoke the good cause or ends of justice exceptions to Rule
5A:18 to permit appellate review of these assignments of error, “and we decline to do so sua
sponte.” Hampton Inn & Selective Ins. Co. of Am. v. King, 58 Va. App. 286, 301, 708 S.E.2d
450, 457 (2011).
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The contemporaneous objection rule, embodied in Rule 5A:18 in
the Court of Appeals . . . is based on the principle that a litigant has
the responsibility to afford a court the opportunity to consider and
correct a perceived error before such error is brought to the
appellate court for review. Reid v. Baumgardner, 217 Va. 769,
773, 232 S.E.2d 778, 781 (1977). The contemporaneous objection
rules . . . exist “[‘]to protect the trial court from appeals based upon
undisclosed grounds, to prevent the setting of traps on appeal, to
enable the trial judge to rule intelligently, and to avoid unnecessary
reversals and mistrials.[’]” Reid v. Boyle, 259 Va. 356, 372, 527
S.E.2d 137, 146 (2000) (quoting Fisher v. Commonwealth, 236
Va. 403, 414, 374 S.E.2d 46, 52 (1988)). These rules are not
limited to evidentiary rulings and require objection while the
tribunal is in a position to correct a claimed error. Id.; Reid v.
Baumgardner, 217 Va. at 774, 232 S.E.2d at 781.
Williams, 266 Va. at 411, 587 S.E.2d at 548.
Accordingly, we summarily affirm the commission. See Code § 17.1-403; Rule 5A:27.
Affirmed.
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Bernard L. DiNicola v. Target Corporation
Combined Opinion