Susan Neal Matousek v. City of Virginia Beach

• Court: Court of Appeals of Virginia
• Decided: September 26, 2023
• Docket: 1603221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Lorish and Senior Judge Petty UNPUBLISHED

SUSAN NEAL MATOUSEK MEMORANDUM OPINION* v. Record No. 1603-22-1 PER CURIAM SEPTEMBER 26, 2023 CITY OF VIRGINIA BEACH

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Catherine C. Hammond, Judge Designate

(Susan Neal Matousek, on brief), pro se.

No brief for appellee.

Appellant Susan Neal Matousek, pro se, sued the City of Virginia Beach, various law

enforcement officers, medical personnel, contractors, and other city employees for a variety of torts.

After examining the brief and record, 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).

Because Matousek did not file a timely transcript or written statement of facts in lieu of a transcript,

and a transcript or written statement of facts is indispensable to a determination of the issues on

appeal, we affirm the circuit court.

BACKGROUND

Matousek sued the City of Virginia Beach, alleging that she was beaten by Melissa

Johnston, an officer with the Virginia Beach police department, while Matousek was in the Virginia

Beach courthouse. Matousek also alleged that Johnston stole her identification, that she was subject

to malicious prosecution by Assistant Commonwealth’s Attorney Sara Chandler, harassment, and

* This opinion is not designated for publication. See Code § 17.1-413(A). other mistreatment by Virginia Beach police and employees. The City of Virginia Beach filed a

special plea in bar and demurrer. The plea in bar cited claim preclusion on the ground that the

controversy at issue had been previously adjudicated in federal court, and expiration of the statute of

limitations. The demurrer argued, inter alia, that “Matousek’s complaint alleges a wide variety of

allegations against” many actors, “most having no apparent connection with the City,” involves

“seemingly unrelated events,” and is “unreasonably confusing.” Later, Matousek filed an

additional complaint for malicious prosecution. On November 30, 2021, the trial court dismissed

Matousek’s complaints with prejudice in part, and without prejudice and with leave to refile in

part.

Matousek then filed an amended complaint, alleging police misconduct and defamation

by a medical provider. The City of Virginia Beach filed a special plea and demurrer to the

amended complaint. The City of Virginia Beach asserted sovereign immunity in its special plea

and lack of vicarious lability for the actions of a contractor in its plea in bar. In its demurrer,

Virginia Beach again asserted that Matousek’s amended complaint was “unreasonably

confusing.” According to the demurrer, “Matousek’s Amended Complaint alleges . . . a wide

variety of allegations against a variety of actors and involving seemingly unrelated events in

conclusory terms,” and “the Amended Complaint lacks a legal basis for judgment against the

City in Matousek’s favor and/or is confusing to the point of obscuring the true nature of any

claim Matousek may intend to assert against the City.” Matousek then filed another amended

complaint, apparently without leave of court, against the City of Virginia Beach, police officers,

circuit court employees, and the City Attorney of Virginia Beach, alleging various acts of

harassment by an assortment of individuals.

The trial court held a hearing on the city’s special plea and demurrer on August 8, 2022,

and dismissed Matousek’s claims with prejudice “upon full consideration of the pleadings,

-2- applicable law, and arguments presented.” By a handwritten entry on the final order, the trial

court stated that all of the objections Matousek made at the hearing were preserved, without

specifying the substance of those objections. Later that day Matousek filed a motion to rehear,

claiming that she did not receive the demurrer argued that day. Without obtaining a ruling from

the trial court on her motion, Matousek filed an untimely notice of appeal on October 19, 2022.1

On November 10, 2022, this Court dismissed Matousek’s appeal as untimely, having

been filed outside of the 30-day period prescribed by Rule 5A:6(a). See Turner v.

Commonwealth, 2 Va. App. 96 (1986). On November 22, 2022, Matousek petitioned this Court

for rehearing on the ground that she had been unable to timely file her notice of appeal because

she had been involuntarily confined at Eastern State Hospital. This Court granted the petition,

vacated the November 10, 2022 order, and reinstated the appeal on the docket.

ANALYSIS

An “appellate court must dispose of the case upon the record and cannot base its decision

upon appellant’s petition or brief . . . . We may act only upon facts contained in the record.”

Browning v. Browning, 68 Va. App. 19, 26-27 (2017) (alteration in original) (quoting Smith v.

Commonwealth, 16 Va. App. 630, 635 (1993)). “The content of the record on appeal is delineated

by Rule 5A:7.” Id. at 27. “[T]he transcript of any proceeding or a written statement of facts,

testimony, and other incidents of the case” are part of the record “as provided in Rule 5A:8.” Rule

5A:7(a)(7). To be made part of the record, such transcript, or a “written statement of facts,

testimony, and other incidents of the case” filed in lieu of a transcript, becomes “part of the record

when it is filed with the office of the clerk of the trial court within 60 days after entry of final

1 It “was [Matousek’s] burden to obtain a clear ruling from the trial court” on her motion to rehear. Young v. Commonwealth, 70 Va. App. 646, 657 (2019). “When a party fails to obtain a ruling on a matter presented to a trial court, ‘there is no ruling for [the appellate court] to review.’” Id. (alteration in original) (quoting Williams v. Commonwealth, 57 Va. App. 341, 347 (2010)). -3- judgment.” Rule 5A:8(a), (c)(1). “[T]he failure to present a complete record upon which this Court

can make an effective determination of the issues may bar our consideration of a party’s assigned

errors.” Browning, 68 Va. App. at 25.

“[W]e are a court of review, not of first view.” Glacier Nw., Inc. v. Int’l Bhd. of

Teamsters Local Union No. 174, 143 S. Ct. 1404, 1424 (2023) (alteration in original) (quoting

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)). “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 this Court to attain the ends of

justice.” Rule 5A:18. “This contemporaneous-objection requirement affords ‘the trial court a

fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and

retrials.’” Hammer v. Commonwealth, 74 Va. App. 225, 236 (2022) (quoting Creamer v.

Commonwealth, 64 Va. App. 185, 195 (2015)).

In its final order, the trial court was careful to note that Matousek “appeared, pro se, and

stated her objections to the ruling of the Court. All objections are preserved and plaintiff was

notified of her right to appeal.” But Matousek failed to file either a transcript or a written statement

of facts in lieu of a transcript, and in the absence of such, we have no way to ascertain what

objections Matousek raised below, what arguments the parties marshalled for and against them, how

the trial court ruled on the objections, and why the court so ruled. See Medeiros v. Va. Dep’t of

Wildlife Res., No. 1463-22-2 (Va. Ct. App. Jul 11, 2023); Depaz v. Council of Co-Owners of the

Westerlies Condo. Ass’n., No. 0228-22-4 (Va. Ct. App. Oct. 25, 2022). In sum, a transcript or

written statement of facts in lieu of a transcript of the August 8, 2022 hearing is “indispensable to

the determination of th[e] issue[s]” Matousek raises. Shiembob v. Shiembob, 55 Va. App. 234, 247

(2009).

-4- “The sanction for failure to comply with Rule 5A:8(a) is governed by Rule 5A:8(b)(4)(ii),

which provides that ‘[w]hen the appellant fails to ensure that the record contains transcripts . . .

necessary to permit resolution of appellate issues, any assignments of error affected by such

omission shall not be considered.’” Browning, 68 Va. App. at 28 (alterations in original). Such

assignments of error are “waived on appeal.” Id. at 30 (quoting Shiembob, 55 Va. App. at 246).

CONCLUSION

Because Matousek failed to file a transcript or written statement of facts in lieu of a

transcript, which is indispensable to the resolution of her assignments of error, “[w]e have no

alternative but to” affirm the judgment of the trial court below. Turner, 2 Va. App. at 100.

Affirmed.

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