Earl Louis Byers, II, etc. v. Tamra Lynn Ducceschi and Amanda Rae Malbon

• Court: Court of Appeals of Virginia
• Decided: April 25, 2023
• Docket: 0991221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Huff and Lorish UNPUBLISHED

EARL LOUIS BYERS, II, INDIVIDUALLY, AND AS EXECUTOR OF THE ESTATE OF DEBRA LYNN BYERS, AS TRUSTEE OF THE DEBRA LYNN BYERS REVOCABLE TRUST, AS TRUSTEE OF THE SPOUSE REVOCABLE LIVING TRUST CREATED UNDER THE DEBRA LYNN BYERS REVOCABLE LIVING TRUST, AND AS TRUSTEE OF THE FAMILY TRUST CREATED UNDER THE DEBRA LYNN BYERS REVOCABLE LIVING TRUST

MEMORANDUM OPINION* v. Record No. 0991-22-1 PER CURIAM APRIL 25, 2023 TAMRA LYNN DUCCESCHI AND AMANDA RAE MALBON

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY Robert H. Sandwich, Jr., Judge

(Randolph A. Raines, Jr.; Ferguson, Rawls & Raines, P.C., on brief), for appellants.

(Christy L. Murphy; Bischoff Martingayle, P.C., on brief), for appellees.

The circuit court ruled for Tamra Lynn Ducceschi and Amanda Rae Malbon (collectively

Ducceschi) in their suit against Earl Louis Byers, II, individually and in his capacity as executor and

trustee in several family trusts. The circuit court removed Byers as executor and trustee and ordered

him to pay into the Debra Lynn Byers revocable living trust $136,404.22, the funds he received

following the sale of real property belonging to the estate. To settle the debt, the circuit court

ordered that funds held in escrow under a lis pendens agreement between the parties be released to

Ducceschi as new trustees of the Debra Lynn Byers revocable living trust in partial satisfaction of

* This opinion is not designated for publication. See Code § 17.1-413. the judgment. Byers’s sole argument on appeal is that the circuit court erred in releasing money

escrowed under the lis pendens agreement. After examining the briefs and record here, the panel

unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.”

Code § 17.1-403(ii)(a); Rule 5A:27(a). For the following reasons, we affirm the circuit court’s

judgment.

BACKGROUND

“When reviewing a trial court’s decision on appeal, we view the evidence in the light most

favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Starr v.

Starr, 70 Va. App. 486, 488 (2019) (quoting Congdon v. Congdon, 40 Va. App. 255, 258 (2003)).

Debra Lynn Byers (hereinafter D. Byers) died testate in September 2015. At the time of

death, D. Byers was a resident of 106 The Machrie, Smithfield, Virginia 23430 (hereinafter The

Machrie property). D. Byers was married to Byers and had two daughters from an earlier marriage,

Ducceschi and Malbon.

Before her death, D. Byers executed the last will and testament of Debra Lynn Hankins

Byers and the Debra Lynn Byers revocable trust. Her daughters were the sole heirs to the estate.

Following D. Byers’ death in 2015, Byers qualified as an executor of the estate. Byers probated the

will with the circuit court but did not provide notice of probate to the heirs. At the time of her death,

D. Byers owned two rental properties, including one located at 1772 Pathfinder Drive, Virginia

Beach, Virginia (hereinafter the Pathfinder property). Byers sold the Pathfinder property in 2017,

but did not put the funds from the sale into D. Byers’ trust.

In December 2018, Ducceschi filed a complaint alleging Byers failed “to keep [Ducceschi]

reasonably informed about the administration of the trust and of the material facts necessary for

them to protect their interest.” Ducceschi also alleged Byers breached his fiduciary duties as trustee

and asked the circuit court to remove and replace Byers as trustee and executor of D. Byers’ estate.

-2- After Byers failed to timely respond to the complaint, Ducceschi moved for default

judgment. In April 2019, the circuit court granted Ducceschi’s motion for default judgment and

removed Byers as executor and trustee of D. Byers’ estate. The circuit court appointed Ducceschi

as coexecutors and cotrustees. The circuit court continued the matter “for the taking of evidence by

the trier-of-fact as to the issue of [Ducceschi’s] damages.”

The parties entered the lis pendens agreement on April 23, 2020. Byers had sold The

Machrie property, titled in the name of Byers’ own living trust, and the parties agreed that their

counsel would each hold 50 % of the proceeds in escrow pending “written agreement of the parties

or . . . court order.”

The circuit court conducted a hearing on the issue of damages on August 26, 2021. The

circuit court heard evidence that Byers sold the Pathfinder Drive property for $136,404.22 but did

not return the funds to D. Byers’ trust. At the close of the hearing, the circuit court ordered that the

$136,404.22 gained from the sale had to be returned to the trust. The circuit court did not enter a

written order memorializing its ruling.

In November 2021, Ducceschi filed a motion for release of escrow and a motion for entry of

the final order. Ducceschi stated that their attorney held in escrow the sum of $80,126.61 and

Byers’ attorney held in escrow the sum of $44,963.67 under the lis pendens agreement, for a total

amount of $125,090.28. Ducceschi asked the circuit court to release this amount to partially satisfy

Byers’ obligations to pay to the trust $136,404.22 under the circuit court’s judgment.

The circuit court held a hearing on Ducceschi’s motion for release of escrow and motion for

entry of final order on May 31, 2022.1 The circuit court entered the final written order that same

day. The circuit court ordered Ducceschi to remain as executors and trustees and removed Byers as

1 The record does not include a transcript, or a written statement of facts in lieu of a transcript, of this hearing. -3- such. Relevant to this appeal, the circuit court ordered Byers to pay $136,404.22 to the trust and

ordered the funds held in escrow under the lis pendens agreement, totaling $125,090.28, be released

as partial satisfaction of the judgment. Byers timely appeals.

ANALYSIS

The sole issue on appeal is whether the circuit court erred in releasing the funds held in

escrow under the lis pendens agreement as partial satisfaction of the judgment. Byers argues that

the funds from the sale of The Machrie property were his personal assets and were not subject to the

present litigation. Byers contends that the circuit court “could not direct the proceeds of the sale of

real property titled solely in the name of [Byers] to be released to [Ducceschi].”

The record does not contain a timely filed transcript from the circuit court’s hearing or a

written statement of facts in lieu of a transcript of the May 31, 2022 hearing, when the circuit court

ordered the release of the funds from escrow under the lis pendens agreement. “The transcript of

any proceeding is a part of the record when it is filed in the office of the clerk of the trial court no

later than 60 days after entry of the final judgment.” Rule 5A:8(a). In this case, Byers never filed a

transcript from the May 31, 2022 hearing.

“On appeal, we presume the judgment of the trial court is correct.” Bay v.

Commonwealth, 60 Va. App. 520, 528 (2012). “The burden is upon the appellant to provide [the

appellate court] with a record which substantiates the claim of error. In the absence [of a

sufficient record], we will not consider the point.” Dixon v. Dixon, 71 Va. App. 709, 716 (2020)

(alterations in original) (quoting Robinson v. Robinson, 50 Va. App. 189, 197 (2007)). “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 will not be considered.” Rule 5A:8(b)(4)(ii).

-4- Without any timely filed transcript or written statement of facts in lieu of a transcript, the

Court cannot determine what evidence the parties presented at the May 31, 2022 hearing. This

Court cannot review the circuit court’s reasoning for ordering the release of funds from escrow as

partial settlement from the judgment order. The circuit court’s order stated only that the money

subject to the lis pendens agreement ($125,090.28) was held in a trust account with each of the

parties’ attorneys and ordered that these funds “immediately be released to the Debra Lynn Byers

Revocable Living Trust in partial satisfaction of the $136,404.22.” With no record of the

arguments Byers made or the positions he took at the May 31, 2022 hearing, we cannot know

that Byers presented the specific arguments he advances on appeal to the circuit court. See Rule

5A:18 (an appellate court will only consider arguments that were timely raised in the trial court).

We thus conclude that a transcript, or written statement of facts in lieu of a transcript,

from the May 31, 2022 hearing is indispensable to a determination of Byers’ assignment of error.

“If . . . the transcript is indispensable to the determination of the case, then the requirements for

making the transcript a part of the record on appeal must be strictly adhered to. This Court has

no authority to make exceptions to the filing requirements set out in the Rules.” Shiembob v.

Shiembob, 55 Va. App. 234, 246 (2009) (alteration in original) (quoting Turner v.

Commonwealth, 2 Va. App. 96, 99 (1986)); see also Bay, 60 Va. App. at 528-29. Because Byers

failed to provide a timely filed transcript or written statement of facts in lieu of a transcript

necessary to resolve his assignment of error, we will not consider it. Rule 5A:8(b)(4)(ii).

Ducceschi requests an award of attorney fees and costs incurred in this appeal. “The

decision of whether to award attorney’s fees and costs incurred on appeal is discretionary.”

Koons v. Crane, 72 Va. App. 720, 742 (2021) (quoting Friedman v. Smith, 68 Va. App. 529, 545

(2018)). In making such a determination, the Court considers all the equities of the case. Rule

-5- 5A:30(b)(2)(C). After considering the record before us and all the equities of the case, we deny

Ducceschi’s request for appellate attorney fees and costs.

CONCLUSION

For these reasons, the circuit court’s ruling is affirmed.

Affirmed.

-6-