Raynham T. Heard v. Janice A. Heard ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia
RAYNHAM T. HEARD
MEMORANDUM OPINION * BY
v. Record No. 1120-01-3 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 26, 2002
JANICE A. HEARD
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge
Raynham T. Heard, pro se.
No brief or argument for appellee.
Code § 8.01-335 provides, in pertinent part:
B. Any court in which is pending a case
wherein for more than three years there has
been no order or proceeding, except to
continue it, may, in its discretion, order
it to be struck from its docket and the
action shall thereby be discontinued. The
court may dismiss cases under this
subsection without any notice to the
parties. The clerk shall provide the
parties with a copy of the final order
discontinuing or dismissing the case. Any
case discontinued or dismissed under the
provisions of this subsection may be
reinstated, on motion, after notice to the
parties in interest, if known, or their
counsel of record within one year from the
date of such order but not after.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On September 11, 1997, Raynham T. Heard appealed to the
trial court orders entered in the Juvenile and Domestic
Relations District Court of Roanoke County, the substance and
effect of which he has not specified. The matter continued on
the trial court's docket, with no order or proceeding except to
continue it, until February 28, 2001, when the trial court
entered an order discontinuing it and striking it from its
docket pursuant to Code § 8.01-335(B). Heard does not dispute
the merits of that action.
Although the statute and the trial court's order required
notice of its action to Heard, his first notice of the
discontinuance of his appeal was his receipt on April 19, 2001,
of a letter dated April 16, 2001, informing him of the court's
action. After receiving this notice, Heard did not seek
reinstatement of his appeal pursuant to the statute. Rather, he
undertook this appeal.
On appeal, Heard poses the following question:
Was the appellant wrongly denied proper
notice of the Docket call and the subsequent
orders until it was too late for him to
timely represent his interests before the
Court?
He has provided us no record to assist us in appraising his
contentions. Thus, we consider the question that he poses on
appeal in the light of the record furnished by the trial court.
Heard first complains that he was given no notice of the
February 28, 2001 docket call and the proposed discontinuance of
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his case. The statute expressly declares such notice
unnecessary. It is the duty of a party maintaining an action in
court to keep track of it and to pursue his rights and remedies
diligently. The trial court's action on February 28, 2001
denied Heard no notice or process that was due him.
Heard next complains that the trial court clerk's failure
to send him timely notice of the discontinuance of his case
denied him the opportunity to "represent his interests before
the Court." If by "the Court" Heard means the trial court, the
statute provided him one year from the discontinuance of his
case, ten months of which remained as of the time he received
notice of the discontinuance from the trial court's clerk, in
order to seek reinstatement. His election not to pursue that
remedy was a decision of his own choosing. That decision in no
way related to the timing of his notice from the trial court's
clerk.
If Heard's question is read to assert the denial of an
opportunity to represent his interests before this Court, the
procedural record of the case refutes his position. We have
received and considered his appeal.
The trial court's remand of the matter to the juvenile and
domestic relations district court was consistent with the
requirements and purpose of Code § 16.1-298(A).
The judgment of the trial court is affirmed.
Affirmed.
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Clements, J., concurring.
I concur in the majority's conclusion affirming the judgment
of the trial court. However, I would reach that conclusion by
finding appellate review procedurally barred in this case because
appellant failed to provide this Court with an appendix as
required by Rule 5A:25.
Rule 5A:25 provides that "[a]n appendix shall be filed by the
appellant in all cases" brought before this Court. Seven copies
of the appendix are to be filed. Rule 5A:25(b); Rule 5A:19(e).
The appendix must include everything that is germane to the
appeal. See Rule 5A:25(c). In considering a case on appeal, we
may look beyond the appendix into the record, but we are not
required to do so. See Rule 5A:25(h).
As the majority acknowledges, the appellant in this case
filed no appendix "to assist us in appraising his contentions."
The only document he filed with this Court was his brief, which,
coincidentally, did not include any "references to the pages of
the . . . record," as required by Rule 5A:20.1 Nevertheless, the
majority chooses to "consider the question [the appellant] poses
on appeal in the light of the record furnished by the trial
court." I would not do so.
1
We have consistently stated that "[w]e will not search the
record for errors in order to interpret the appellant's contention
and correct deficiencies in a brief." Buchanan v. Buchanan, 14
Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
As the Supreme Court wrote in Thrasher v. Burlage, 219 Va.
1007, 1009-10, 254 S.E.2d 64, 66 (1979) (per curiam):
The appendix is a tool vital to the
function of the appellate process in
Virginia. Without it, the seven Justices of
this Court would have to pass the original
record from one to the other. Much of the
contents, though material at trial, may be
utterly irrelevant to the issues posed on
appeal. By requiring the publication and
distribution of an appendix which excludes
all irrelevancies, the Rules of Court
expedite the adjudication of the appeal and
reduce the costs. By requiring the
inclusion of all parts of the record germane
to the issues, the Rules promote the cause
of plenary justice.
While the panel of judges considering the instant case on
appeal consisted of only three judges, the same principles apply
here. Additionally, the judges of this Court are diversely
situated throughout the Commonwealth. Thus, the filing of an
appendix, as required by the Rules, is, in my opinion, "essential
to an informed collegiate decision." Id.Furthermore, we do not presume on appeal that the trial court
has erred. Indeed,
"[w]e have many times pointed out that on
appeal the judgment of the lower court is
presumed to be correct and the burden is on
the appellant to present to us a sufficient
record from which we can determine whether
the lower court has erred in the respect
complained of. If the appellant fails to do
this, the judgment will be affirmed."
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Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6
(1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,
256-57 (1961)).
For these reasons, I would hold that we are barred from
considering the question before us and would affirm the judgment
of the trial court.
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