COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, O’Brien and Russell UNPUBLISHED
Argued at Alexandria, Virginia
J.V., A MINOR, BY HER MOTHER AND NEXT FRIEND, ANETTE H. VELDHUYZEN MEMORANDUM OPINION BY v. Record No. 0679-15-4 JUDGE WILLIAM G. PETTY NOVEMBER 15, 2016 STAFFORD COUNTY SCHOOL BOARD
FROM THE CIRCUIT COURT OF STAFFORD COUNTY Victoria A.B. Willis, Judge
Anette H. Veldhuyzen, pro se, for appellant.
Pakapon Phinyowattanachip (Patrick T. Andriano; Reed Smith, LLP, on brief), for appellee.
J.V., by her mother and next friend, challenges the circuit court’s granting of Stafford
County School Board’s motion for summary judgment related to the School Board’s denial of a
manifestation determination pursuant to the Individuals with Disabilities Education Act.
Appellant lists six assignments of error1 in her opening brief. Rule 5A:18 states, “No
ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable the Court of Appeals to attain the ends of justice.” Thus, except for the narrow exception,
Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant’s opening brief also includes a “Main Question for Review” with ten sub-points. Effective July 1, 2010, Rule 5A:20(c) was revised to state that an appellant’s opening brief shall contain a “statement of the assignments of error with a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each assignment of error was preserved in the trial court.” Pursuant to the revised rules, this Court considers only assignments of error and, as such, will not consider the additional issues listed under the “Main Question for Review.”
which does not apply in this case, this Court will not consider a claim of trial court error as a
ground for reversal where no timely objection was made.
The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). “A general argument or
abstract reference to the law is not sufficient to preserve an issue.” Edwards v. Commonwealth,
41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc).
Appellant fails to provide in her opening brief “a clear and exact reference to the page(s)
of the transcript, written statement, record, or appendix where each assignment of error was
preserved in the trial court,” as required by Rule 5A:20(c). The transcript reference for the first
assignment of error is to opposing counsel’s opening statement to the circuit court. The second
assignment of error references “Proffer, Transcript, Booklet A, p. 42, 45; Record, not complete,
Booklet A, p. 28; 31 A & B not allowed to come in, Hearing Transcript, p. 11.” This confusing
reference is anything but “clear and exact.” The third assignment references pages in the
transcript containing appellant’s general argument before the court. The fourth and sixth
assignments of error appear to reference an administrative hearing transcript, and thereby fail to
point to preservation in the trial court of the issue. Finally, appellant’s fifth assignment of error
cites the final order but does not point to a page in the transcript, record, or appendix where
appellant preserved an argument before the trial court related to that assignment of error. Thus,
although appellant references various parts of the record, none of these references show a place
where appellant made a specific objection to the trial court to enable it to rule intelligently on the
issue presented. Appellant’s general arguments are not sufficient to preserve an issue for appeal.
See Edwards, 41 Va. App. at 760, 589 S.E.2d at 448. - 2 - Appellant additionally failed to comply with Rule 5A:20(d), which requires a “clear and
concise statement of the facts that relate to the assignments of error, with references to the pages
of the transcript, written statement, record, or appendix.” Appellant’s statement of facts provides
cryptic references to documents presumably in a voluminous unpaginated appendix contained in
a three-inch three-ring binder. Appellant’s statement of facts section of her brief is filled with
unsupported argument, allegations, and opinion statements. Moreover, in her opening brief,
appellant fails to include a “brief statement of the nature of the material proceedings in the trial
court, which shall omit references to any paper filed or action taken that does not relate to the
assignments of error.” Rule 5A:20(b). On the contrary, appellant’s brief begins with a large
volume of extraneous material.
“At the risk of stating the obvious, the Rules of the Supreme Court are rules and not
suggestions; we expect litigants before this Court to abide by them.” Eaton v. Dep’t of Soc.
Servs., 66 Va. App. 317, 320 n.1, 785 S.E.2d 231, 233 n.1 (2016). “[S]trict compliance with the
rules permits a reviewing court to ascertain the integrity of the parties’ assertions which is
essential to an accurate determination of the issues raised on appeal.” Milam v. Milam, 65
Va. App. 439, 465, 778 S.E.2d 535, 548 (2015) (quoting Fadness v. Fadness, 52 Va. App. 833,
850, 667 S.E.2d 857, 865 (2008)). “Accordingly, when a party’s failure to strictly adhere to the
[rules of court] is significant, this Court may treat the assignment of error as waived.” Id. at
465-66, 778 S.E.2d at 548 (quoting Fadness, 52 Va. App. at 850, 667 S.E.2d at 865).
We recognize that appellant is proceeding pro se in this case through her mother and next
friend. However, “[e]ven pro se litigants must comply with the rules of court.” Francis v.
Francis, 30 Va. App. 584, 590-91, 518 S.E.2d 842, 846 (1999). This Court has given appellant
multiple opportunities to remedy her non-compliance with the rules of court. The Clerk of Court
returned transcripts to appellant on July 15, 2015, when the transcripts were improperly filed
- 3 - with the Court of Appeals rather than the circuit court. This Court granted an extension of time
on December 18, 2015, to appellant, over appellee’s objection, to file her opening brief and
appendix. On February 2, 2016, this Court issued an order requiring appellant to show cause
why her case should not be dismissed for failure to timely file an appendix. After receiving
appellant’s response, this Court issued an order on February 19, 2016, requiring appellant to file
both an electronic and paper appendix within 10 days. The appendix appellant filed did not
include all of the excerpts of the trial record identified in appellant’s designation. Instead of the
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COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, O’Brien and Russell UNPUBLISHED
Argued at Alexandria, Virginia
J.V., A MINOR, BY HER MOTHER AND NEXT FRIEND, ANETTE H. VELDHUYZEN MEMORANDUM OPINION BY v. Record No. 0679-15-4 JUDGE WILLIAM G. PETTY NOVEMBER 15, 2016 STAFFORD COUNTY SCHOOL BOARD
FROM THE CIRCUIT COURT OF STAFFORD COUNTY Victoria A.B. Willis, Judge
Anette H. Veldhuyzen, pro se, for appellant.
Pakapon Phinyowattanachip (Patrick T. Andriano; Reed Smith, LLP, on brief), for appellee.
J.V., by her mother and next friend, challenges the circuit court’s granting of Stafford
County School Board’s motion for summary judgment related to the School Board’s denial of a
manifestation determination pursuant to the Individuals with Disabilities Education Act.
Appellant lists six assignments of error1 in her opening brief. Rule 5A:18 states, “No
ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable the Court of Appeals to attain the ends of justice.” Thus, except for the narrow exception,
Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant’s opening brief also includes a “Main Question for Review” with ten sub-points. Effective July 1, 2010, Rule 5A:20(c) was revised to state that an appellant’s opening brief shall contain a “statement of the assignments of error with a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each assignment of error was preserved in the trial court.” Pursuant to the revised rules, this Court considers only assignments of error and, as such, will not consider the additional issues listed under the “Main Question for Review.”
which does not apply in this case, this Court will not consider a claim of trial court error as a
ground for reversal where no timely objection was made.
The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). “A general argument or
abstract reference to the law is not sufficient to preserve an issue.” Edwards v. Commonwealth,
41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc).
Appellant fails to provide in her opening brief “a clear and exact reference to the page(s)
of the transcript, written statement, record, or appendix where each assignment of error was
preserved in the trial court,” as required by Rule 5A:20(c). The transcript reference for the first
assignment of error is to opposing counsel’s opening statement to the circuit court. The second
assignment of error references “Proffer, Transcript, Booklet A, p. 42, 45; Record, not complete,
Booklet A, p. 28; 31 A & B not allowed to come in, Hearing Transcript, p. 11.” This confusing
reference is anything but “clear and exact.” The third assignment references pages in the
transcript containing appellant’s general argument before the court. The fourth and sixth
assignments of error appear to reference an administrative hearing transcript, and thereby fail to
point to preservation in the trial court of the issue. Finally, appellant’s fifth assignment of error
cites the final order but does not point to a page in the transcript, record, or appendix where
appellant preserved an argument before the trial court related to that assignment of error. Thus,
although appellant references various parts of the record, none of these references show a place
where appellant made a specific objection to the trial court to enable it to rule intelligently on the
issue presented. Appellant’s general arguments are not sufficient to preserve an issue for appeal.
See Edwards, 41 Va. App. at 760, 589 S.E.2d at 448. - 2 - Appellant additionally failed to comply with Rule 5A:20(d), which requires a “clear and
concise statement of the facts that relate to the assignments of error, with references to the pages
of the transcript, written statement, record, or appendix.” Appellant’s statement of facts provides
cryptic references to documents presumably in a voluminous unpaginated appendix contained in
a three-inch three-ring binder. Appellant’s statement of facts section of her brief is filled with
unsupported argument, allegations, and opinion statements. Moreover, in her opening brief,
appellant fails to include a “brief statement of the nature of the material proceedings in the trial
court, which shall omit references to any paper filed or action taken that does not relate to the
assignments of error.” Rule 5A:20(b). On the contrary, appellant’s brief begins with a large
volume of extraneous material.
“At the risk of stating the obvious, the Rules of the Supreme Court are rules and not
suggestions; we expect litigants before this Court to abide by them.” Eaton v. Dep’t of Soc.
Servs., 66 Va. App. 317, 320 n.1, 785 S.E.2d 231, 233 n.1 (2016). “[S]trict compliance with the
rules permits a reviewing court to ascertain the integrity of the parties’ assertions which is
essential to an accurate determination of the issues raised on appeal.” Milam v. Milam, 65
Va. App. 439, 465, 778 S.E.2d 535, 548 (2015) (quoting Fadness v. Fadness, 52 Va. App. 833,
850, 667 S.E.2d 857, 865 (2008)). “Accordingly, when a party’s failure to strictly adhere to the
[rules of court] is significant, this Court may treat the assignment of error as waived.” Id. at
465-66, 778 S.E.2d at 548 (quoting Fadness, 52 Va. App. at 850, 667 S.E.2d at 865).
We recognize that appellant is proceeding pro se in this case through her mother and next
friend. However, “[e]ven pro se litigants must comply with the rules of court.” Francis v.
Francis, 30 Va. App. 584, 590-91, 518 S.E.2d 842, 846 (1999). This Court has given appellant
multiple opportunities to remedy her non-compliance with the rules of court. The Clerk of Court
returned transcripts to appellant on July 15, 2015, when the transcripts were improperly filed
- 3 - with the Court of Appeals rather than the circuit court. This Court granted an extension of time
on December 18, 2015, to appellant, over appellee’s objection, to file her opening brief and
appendix. On February 2, 2016, this Court issued an order requiring appellant to show cause
why her case should not be dismissed for failure to timely file an appendix. After receiving
appellant’s response, this Court issued an order on February 19, 2016, requiring appellant to file
both an electronic and paper appendix within 10 days. The appendix appellant filed did not
include all of the excerpts of the trial record identified in appellant’s designation. Instead of the
actual pages from the record, pages appeared in the appendix stating, “References a document
found in its entirety in the court files.” This note was substituted for at least five lengthy
excerpts from the record. On April 26, 2016, this Court ordered appellant to file a complete,
amended appendix which included the designated items in their entirety. This Court reminded
appellant at that time that Rule 5A:25(h) provides, “[i]t will be assumed that the appendix
contains everything germane to the assignments of error.” This Court held in abeyance
appellee’s motion to dismiss on the grounds that the appendix was incomplete and did not
comply with Rule 5A:25. On June 24, 2016, this Court determined that the appeal could
proceed, but expressly stated in its order that the ruling was not intended to preclude the panel of
judges hearing the case from deciding that the opening brief and appendix are not in compliance
with the rules of the court.
We so find. Although appellant is appearing pro se, the rules of court “appl[y] equally to
both pro se litigants and those who are represented by counsel.” Newsome v. Newsome, 18
Va. App. 22, 24-25, 441 S.E.2d 346, 347 (1994). “[T]he ‘right of self-representation is not a
license’ to fail ‘to comply with the relevant rules of procedural and substantive law.’” Francis,
30 Va. App. at 591, 518 S.E.2d at 846 (quoting Townes v. Commonwealth, 234 Va. 307, 319,
362 S.E.2d 650, 656-57 (1987)). “To ignore such a rule by addressing the case on the merits
- 4 - would require this court to be an advocate for, as well as the judge of the correctness of,
[appellant’s] position on the issues [s]he raises.” Jones v. Commonwealth, 51 Va. App. 730,
734, 660 S.E.2d 343, 345 (2008). Such impermissible advocacy can occur when the appellee
and this Court must attempt to piece together appellant’s argument using a non-compliant brief
and appendix. “On the other hand, strict compliance with the rules permits a reviewing court to
ascertain the integrity of the parties’ assertions, which is essential to an accurate determination of
the issues raised on appeal.” Id.
Because we find appellant’s failure to adhere to the requirements of the rules of court is
significant, this Court deems her assignments of error as waived.2 We consequently affirm the
circuit court’s ruling.
Affirmed.
2 Appellee asks that we dismiss the appeal on the basis of appellant’s failure to comply with the rules of court. A litigant’s failure to comply with the rules of court provides a basis for affirming the trial court’s decision, not dismissing it. “[W]hen a party’s failure to strictly adhere to the requirements of Rule 5A:20(e) is significant, ‘the Court of Appeals may . . . treat a question presented as waived.’” Coe v. Coe, 66 Va. App. 457, 469-70, 788 S.E.2d 261, 267, (2016) (alteration in original) (quoting Fadness, 52 Va. App. at 850, 667 S.E.2d at 865). - 5 -