Clarence M. Bowser v. Sheila B. Guenard

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Willis
CLARENCE M. BOWSER
MEMORANDUM OPINION *
v. Record No. 0024-08-1 PER CURIAM
JUNE 16, 2009
SHEILA B. GUENARD
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
J. Warren Stephens, Judge Designate
(Clarence M. Bowser, pro se, on brief).
No brief for appellee.
Clarence M. Bowser appeals from the trial court’s orders related to (i) title and easement
issues in a real estate dispute between the parties, and (ii) ancillary contempt proceedings in
which appellant was found in civil contempt of court on three separate occasions. For the
reasons stated below, we summarily affirm the trial court’s decisions as to the ancillary civil
contempt proceedings, see Rule 5A:27, excepting the portion of this appeal relating to the trial
court’s third contempt order, dated December 4, 2007, which was not a final order at the time of
this appeal. We thus dismiss that portion of the appeal without prejudice. In addition, it appears
this Court does not have jurisdiction over the portion of this appeal raising real estate title and
easement issues. We thus transfer that portion of the case to the Supreme Court of Virginia
pursuant to Code § 8.01-677.1.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Background
Appellee, Sheila B. Guenard (Guenard) instituted this action by filing a complaint
against appellant involving a real estate dispute, seeking both injunctive and monetary relief.
The trial court ruled in Guenard’s favor on the title and easement related issues in dispute, and,
inter alia, ordered “prohibitory” and “mandatory” injunctions against appellant. The trial court’s
August 10, 2007 order setting forth the terms of the injunctions specifically provided that any
violation of those terms “shall be deemed contempt, and [appellant] shall be held in contempt of
[c]ourt” for such violation(s).
Guenard subsequently filed a motion to show cause why appellant should not be held in
contempt of the August 10, 2007 order. Pursuant to this motion, in an order dated October 26,
2007 the trial court found, “[u]pon consideration of the pleadings, exhibits, testimony, argument
of counsel, and unchallenged proffers,” that “[appellant] did not faithfully comply with the
requirements of the August 10 Order.” Accordingly, as further stated in the order, the court
found appellant in civil contempt, and sentenced him to ten days in jail. However, the court
suspended the sentence conditioned upon his full compliance with the order on or before October
26, 2007. 1
By order dated October 26, 2007, the trial court found appellant in civil contempt of court
for violation of the court’s previous orders. The court then reinstated the suspended sentence,
and ordered appellant to serve the ten days in jail.
Afterwards, Guenard filed another motion to show cause why appellant should not be
held in contempt based on appellant’s continuous violations of the August 10, 2007 order. By
1
More specifically, the trial court found appellant in civil contempt “because he failed to
cease blocking, obstructing, and interfering with the [subject] [e]asement, he did not terminate
any and all trespassing, and he did not terminate any and all activities upon the Guenard
[p]roperty.”
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order dated December 4, 2007, the trial court, after “taking evidence and hearing argument,”
again found appellant in contempt of court for violating the August 10 order. However, the court
continued the penalty phase of this matter to January 4, 2008.
On January 2, 2008, appellant filed his notice of appeal to this Court.
Analysis
In his opening brief, appellant challenges the trial court’s rulings as to the title and
easement issues in this real property case, along with the court’s rulings pertaining to the
ancillary contempt proceedings.
First, as to the real property issues, this Court has no subject matter jurisdiction to
consider an appeal on those issues. See Code § 17.1-405; see also Canova Elec. Contr. v. LMI
Ins. Co., 22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996) (“Unless a statute confers
jurisdiction in this Court, we are without power to review an appeal.” (citing Polumbo v.
Polumbo, 13 Va. App. 306, 307, 411 S.E.2d 229, 229 (1991)).
Second, in regard to his appeal of the trial court finding appellant in civil contempt of
court 2 on three separate occasions in the ancillary proceedings, appellant appears in his opening
brief to be asserting a violation of due process. He also appears to be challenging the trial
court’s evidentiary rulings and the sufficiency of the evidence in support of the court’s contempt
findings. The record on appeal, however, contains no transcript or written statement of facts.
See Rule 5A:8(a) and (c). “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.” Rule 5A:8(b); see Anderson v.
Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d 75, 76-77 (1992); Turner v.
2
See Code § 19.2-318 (setting forth this Court’s jurisdiction to consider an appeal
“[f]rom a judgment for any civil contempt of court”).
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Commonwealth, 2 Va. App. 96, 99-100, 341 S.E.2d 400, 402 (1986). We conclude that a
transcript or written statement of facts is indispensable to a determination of whether the court
erred in making those findings.
Third, in the absence of any transcript or statement of facts complying with Rule 5A:8,
the record fails to establish that appellant presented the issues he raises on appeal to the trial
court, as required by Rule 5A:18. See Parker v. Commonwealth, 42 Va. App. 358, 379, 592
S.E.2d 358, 369 (2004), aff’d, 269 Va. 174, 608 S.E.2d 925 (2005). The burden is on appellant
to present a sufficient record from which the appellant court may determine that he preserved the
claimed errors for appeal. See Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852
(1992); Lee v. Lee, 12 Va. App. 512, 516-17, 404 S.E.2d 736, 738-39 (1991) (en banc).
Fourth, appellant failed to comply with Rule 5A:20(c), which requires “[a] statement of
the questions presented with a clear and exact reference to the page(s) of the transcript, written
statement, record, or appendix where each question was presented in the trial court.” Appellant
likewise failed to cite any legal authority in support of his arguments. See Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992) (“[S]tatements unsupported by
argument, authority, or citations to the record do not merit appellate consideration.”).
Finally, because the trial court, in its December 4, 2007 order, continued the penalty
phase of appellant’s third contempt, that order was not appealabe. See Street v. Street, 24
Va. App. 14, 19, 480 S.E.2d 118, 121 (1997) (“A contempt order is appealable if it adjudicates
all issues of guilt and imposes a sentence.” (emphasis added) (citing Peet v. Peet, 16 Va. App.
323, 326, 429 S.E.2d 487, 489 (1993); E.I. du Pont de Nemours & Co. v. Universal Moulded
Products Corp., 189 Va. 523, 526, 53 S.E.2d 835, 836 (1949)).
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Conclusion
We thus summarily affirm the trial court’s decisions as to the ancillary civil contempt
proceedings, excepting the portion of this appeal relating to the trial court’s third contempt order,
dated December 4, 2007, which we dismiss without prejudice because it was not a final order at
the time of this appeal. In addition, it appears this Court does not have jurisdiction over the
portion of this appeal raising real estate title and easement issues. Accordingly, that portion of
the case is hereby transferred to the Supreme Court of Virginia pursuant to Code § 8.01-677.1.
Affirmed in part,
dismissed in part without prejudice,
and transferred in part
to the Supreme Court of Virginia.
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