Rule 5A:8(b)(4)(ii) strikes Again
Medeiros v. Virginia Dep’t of Wildlife Res., Record No. 230691 (Va. Sept. 26, 204) (unpub. order)
In an unpublished order, the Supreme Court affirms the judgment of the Court of Appeals for the reasons stated in the unpublished opinion Medeiros v. Virginia Dep’t of Wildlife Res., Record No. 1463-22-22 (July 11, 2023). That opinion affirmed the trial court’s decision and found the appeal to be “wholly without merit” because the appellants failed to file a transcript or written statement of facts of the demurrer hearing.
The appellants were landowners who brought a declaratory judgment action asserting a taking of their property and an associated inverse condemnation claim for compensation against the Virginia Department of Wildlife Resources (VDWR). VDWR demurred. The trial court sustained the demurrer on two grounds after it “considered the arguments made at the hearing.”
If there are multiple legal grounds for a ruling, an appellant must challenge all grounds. If they do not, the ruling must be affirmed. Here, without a transcript or statement of facts, the Court of Appeals found that it could not determine whether the landowners’ assignment of error challenged both grounds for the trial court’s ruling. So, they affirm the trial ruling. That seems fair.
But then, the Court of Appeals added, “with no record of the arguments the landowners made or the positions they took (or possibly abandoned) at the demurrer hearing, we cannot know if their appellate argument repudiates a position that they may have taken in the trial court, let alone whether the trial court ruled, and erred, as they claim.” That seems less fair. Here’s why. Transcripts are not required in every case. They are only required if they are necessary to resolve the issues before the appellate court. But if appellants must prove that they never affirmatively waived their argument at any hearings, as this case suggests, then appellants must file the transcript of every hearing, even if unrelated to the issue on appeal. The moral of the story: hire a court reporter and order a transcript for every hearing.