Court of Appeals issues important transcript ruling

(Posted August 1, 2017) Want to read about a nightmare? Let’s take up Browning v. Browning, an appeal of an equitable-distribution ruling.

The facts are … well, actually, the facts don’t matter much for our purposes, since the primary lesson of this decision is procedural. You need to know that the trial court convened an evidentiary hearing on November 19, 2012. You should assume that what transpired there was essential for resolution of the issues on appeal.

Judge Russell’s opinion for a unanimous panel recites that “Copies of the transcript were provided to counsel for the parties and the trial judge. No copy of the transcript was filed with the clerk of the trial court at that time.” So the parties have the transcript and the judge has the transcript.

But the clerk doesn’t have the transcript, and Rule 5A:8 says that a transcript is part of the record when it is “filed in the office of the clerk of the trial court within 60 days after entry of the final judgment.” The court entered final judgment on November 16, 2016, four years after the date of the hearing. The wife, the appellant in this case, filed a copy of the transcript with the clerk on January 19, 2017, more than 60 days later.

The CAV rules that what happened here wasn’t enough to make the first copy of the transcript part of the record, so it regards the appealed issues as waived and affirms the judgment. That may come as a surprise to you; after all, the judge had a copy of the transcript in his hands for nearly four years before judgment. But the rule is clear: you have to file it with the clerk, not the judge, in order to make it part of the record.

Now, Judge Russell is no fool; he acknowledges near the end of the opinion that this is a harsh outcome, but notes that there’s nothing unfair about enforcing the rules as they’re written. He quotes a recent CAV holding that the rules of court “are rules and not suggestions …”

Before we leave this nightmare, there’s one last small point. It occurs in a footnote on page 9 of the opinion. While I generally dislike using long block quotations, this one is important enough that I beg your indulgence; please read this all the way through for a nasty surprise:

In responding to the motion to dismiss, wife provided this Court with what purports to be a January 2013 e-mail from the court reporter that indicates that the court reporter asked the trial judge’s assistant where to send the original November 19, 2012 hearing transcript and that the judge’s office replied that the trial judge’s “instructions are for me to send the original transcript and original exhibit binder to him and he will mark each as received and filed, and that was assuming that [wife’s counsel] wanted the original filed.” We first note that the e-mail is not a part of the record, and therefore, is not properly before us. … Nevertheless, even assuming the e-mail were properly before us, nothing in the purported instruction of the trial judge prohibited or prevented wife from filing a copy of the transcript with the clerk of the trial court. By way of example, a copy of the January 8, 2014 hearing transcript was filed with the clerk of the trial court on March 10, 2014.

In my mind, that e-mail – assuming we’re allowed to consider it – puts a slightly different spin on things, and expands the nature of my warning to trial and appellate practitioners. I get the first part of the footnote; if the e-mail isn’t in the record, then the court is fully justified in ignoring it. But the “even assuming” part of this paragraph is startling. The judge’s assistant, who I assume was authorized by the judge to act, indicated what amounts to a promise by the judge to “mark each as received and filed.”

I believe that a litigant ought to be able to rely on a promise made by a judge. The last portion of the footnote indicates – correctly – that the judge didn’t forbid the lawyer to file a copy of the transcript, but that’s cold comfort to someone who’s relied on a seemingly reliable source. This ruling means that if you’re in this situation, you must assume that the judge will not follow through on a promise to file something for you; you have to go the extra step and file a copy with the clerk yourself. That may seem redundant, and it costs a little more. But it’s cheaper than defending a legal-malpractice claim. And as of now, the Virginia bar is on notice that filing a transcript with the judge is probably insufficient to preserve an issue for appeal.