Thornock v. Bedford Cnty.
| Decision Date | 23 May 2023 |
| Docket Number | 1755-22-3 |
| Parties | RILEY D. THORNOCK AND REBECCA J. THORNOCK v. BEDFORD COUNTY |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF BEDFORD COUNTY James W. Updike, Jr. Judge
(Riley D. Thornock; Rebecca J. Thornock, on briefs), pro se. Appellants submitting on briefs.
(Patrick J. Skelley, II; Brandon K. Butler, on brief), for appellee. Appellee submitting on brief.
Present: AtLee, Friedman Judges and Clements Senior Judge.
Riley D. Thornock and Rebecca J. Thornock appeal the trial court's decision dismissing their tort claims against Bedford County following an evidentiary hearing. The parties waived argument in this case. See Code § 17.1-403(ii). Because the record does not contain a transcript or written statement of facts documenting the evidentiary hearing, we are unable to address their arguments on appeal. The trial court's judgment is affirmed.
We review the evidence "in the light most favorable to . the prevailing party at trial," disturbing the trial court's judgment only when "it is plainly wrong or without evidence to support it." Sidya v. World Telecom Exch. Communications, LLC, 301 Va. 31, 37 (2022) (quoting Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 90 (2012)). On September 21, 2018, Bedford County brought an action in circuit court seeking to enjoin the Thornocks from continuing to engage in alleged zoning and building code violations involving a warehouse they were operating as a "hotel/motel/motor lodge." The Thornocks did not file an answer but instead filed a "brief." On October 27, 2021, the trial court found that the Thornocks had violated the county and state building codes and ordered them to cease using the warehouse for residential purposes. The trial court continued the case to January 5, 2022, to allow the Thornocks to remedy the violations and to seek the necessary zoning approvals. The Thornocks then filed a counterclaim against the County alleging that the County had violated their constitutional rights, had interfered with their attempt to earn a livelihood, and had failed to provide necessary services.
On January 12, 2022, the trial court entered an order indefinitely enjoining the Thornocks from "offering or advertising the Property for residential and dwelling uses," and forbidding anyone other than the Thornocks and their family from residing there. The order also granted the Thornocks leave to amend their counterclaim. The Thornocks amended their counterclaim three times and alleged, among other things, that the County had been negligent in their enforcement of the building code and zoning ordinances, thereby inducing the Thornocks to invest further in development of the property and to sustain financial losses that culminated in their filing bankruptcy. The County filed pleas in bar, including a sovereign immunity defense, and demurred.
Following an evidentiary hearing and argument on October 3, 2022, the trial court dismissed the County's injunction action as moot because the Thornocks' property was "no longer being occupied, nor offered, for dwelling purposes of any kind." The trial court denied the County's sovereign immunity pleas in bar and demurrer to the Thornocks' counterclaim; however, it dismissed the Thornocks' counterclaim after finding that "the County was neither negligent nor grossly negligent, nor [guilty of] willful misconduct, in enforcing its building code and zoning ordinances." The Thornocks appeal.
"[W]hen evidence is presented 'on [a] plea ore tenus, the circuit court's factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.'" McBride v. Bennett, 288 Va. 450, 454 (2014) () (quoting Hawthorne v VanMarter, 279 Va. 566, 577 (2010)). "Issues of negligence and proximate causation ordinarily are questions of fact for the [fact finder]'s determination." Dorman v. State Indus., Inc., 292 Va. 111, 122 (2016) (quoting Atkinson v. Scheer, 256 Va. 448, 453-54 (1998).
The Thornocks contend the trial court erred by dismissing their counterclaim that the County acted improperly by issuing "illegal building and zoning permits" and by failing to engage in timely inspections with an open building permit.[1] They contend that the trial court dismissed their counterclaim with prejudice based on three findings: (1) "the County was neither negligent nor grossly negligent, nor did it commit willful misconduct, in enforcing its building code and zoning ordinances [with respect to] [the Thornocks'] property"; (2) "the County was not the proximate cause of the losses alleged by [the Thornocks]"; and (3) "there was no unconstitutional taking of the [Thornocks'] property."
The County, in turn, asserts that the Thornocks failed to perfect their appeal because their notice of appeal is fatally defective, depriving us of jurisdiction to consider the Thornocks' arguments. It also argues that the appeal should be dismissed because the record does not include a transcript or a properly filed statement of facts and because the Thornocks' opening brief does not comply with Rule 5A:20.
I. Notice of Appeal
The County contends that the Thornocks' notice of appeal does not comply with Rule 5A:6(b) because it fails to state whether any transcripts, statement of facts, or other incidents of trial would be filed; moreover, it did not include a certificate "stating the required information" and "did not certify that a copy" was provided to opposing counsel.
"A litigant who seeks to appeal a judgment to . . . the Court of Appeals must file a notice of appeal." Nicholson v. Commonwealth, 300 Va. 17, 22 (2021). Before this Court may exercise jurisdiction over a case, the notice of appeal must be timely and must adequately identify the case being appealed; any other defects in the notice of appeal are "procedural" and subject to waiver. Roberson v. Commonwealth, 279 Va. 396, 407 (2010). "As its name indicates, 'the purpose of the notice of appeal is merely to place the opposing party on notice and to direct the clerk to prepare the record on appeal.'" Nicholson, 300 Va. at 22 (quoting LaCava v. Commonwealth, 283 Va. 465, 469 n.* (2012)). "Given the simple function of the notice of appeal, which is to provide notice, we have 'never required that a notice of appeal be precise, accurate, and correct in every detail before [an] appellate court can acquire jurisdiction over the case in which the notice is filed.'" Id. (quoting Ghameshlouy v. Commonwealth, 279 Va. 379, 391 (2010)). Thus, "a failure to strictly adhere to the certification of notice to other parties requirement of Rule 5A:6(d) [does] not bar the Court from obtaining jurisdiction over the appeal where other aspects of the record show[] that the party was advised that a timely notice of appeal had been filed." Ghameshlouy, 279 Va. at 392 (quoting M.G. v. Albemarle Cnty. Dep't of Soc. Servs., 41 Va.App. 170, 177-78 (2003)); see also M.G., 41 Va.App. at 178-79 ().
Here, the notice of appeal substantially complies with Rule 5A:6 because, even though the Thornocks did not include a certificate or a cover letter notifying the County of its notice of appeal, they did provide the County with a copy of "Motion to Waive Appeal Bond," filed on the same day as the notice of appeal. That motion included a certificate confirming that it was sent to counsel for the County. Moreover, the County's knowledge of the appeal is reflected in its timely filed brief in opposition and motion to dismiss the Thornocks' appeal. See id. at 177-78 (). Accordingly, we conclude that the defects in the notice of appeal are not fatal to our exercise of jurisdiction. Therefore, we deny the County's motion to dismiss the appeal on this basis.
2. Rule 5A:8
"Our review of an appeal is restricted to the record." Oliver v. Commonwealth, 35 Va.App. 286, 296 (2001). Jenkins v. Winchester Dep't of Soc. Servs., 12 Va.App. 1178, 1185 (1991). Rule 5A:8(a) requires that, for a transcript to be part of the record on appeal, it must be "filed in the office of the clerk of the trial court no later than 60 days after entry of the final judgment." Alternatively, an appellant may submit a written statement of facts in lieu of a transcript in compliance with Rule 5A:8(c). If 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 will not be considered." Rule 5A:8(b)(4)(ii).
The record before us does not include a transcript from the October 3, 2022 evidentiary hearing on which the trial court based its October 11, 2022 final order. Although the Thornocks timely filed a statement of facts in the trial court on November 14, 2022, the statement of facts did not provide notice to the County that it would be presented to the trial judge.
Nor was the statement signed by the trial judge, as required by Rule 5A:8(c).
"[A] written statement becomes a part of the record" if three conditions are met. Proctor v. Town of Colonial Beach, 15 Va.App. 608, 610 (1993) ...
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