Please ensure Javascript is enabled for purposes of website accessibility

No certification of fact statement for appeal

Virginia Lawyers Weekly//November 16, 2021

No certification of fact statement for appeal

Virginia Lawyers Weekly//November 16, 2021

Where the court sustained defendants’ demurrer to plaintiffs’ complaint, which alleged that portions of COVID-related executive orders are unconstitutional, plaintiffs’ proposed statement of facts submitted after their notice of appeal is defective and cannot be certified.

The court issues a “Statement in Lieu of Judge’s Certificate” to explain why the proposed statement is defective.


Plaintiffs, a restaurant owner and his corporate entity, challenged the constitutionality of Governor Northam’s COVID-related executive orders, which placed operating restrictions on food and beverage establishment.

At a hearing where no court reporter was present, the court hear arguments regarding defendants’ demurrer to the complaint and later issued a letter opinion (Exhibit A) sustaining the demurrer with prejudice.

Plaintiffs filed a notice of appeal (Exhibit B)  and submitted a proposed statement of facts. Defendants objected to the proposed statement, arguing that it does not comply with Rule 5:11 (Exhibit C).

“Defendants argue that the Proposed Statement of Facts is improper because, instead of summarizing the testimony and evidence from a court proceeding, it advances new legal arguments, restates arguments from the parties’ briefs, summarizes the Court’s rulings, and identifies what Defendants contend are errors in the Letter Opinion.”

Rule’s requirements

“Rule 5:11(b) requires filing the ‘transcript of any proceeding in the case that is necessary for the appeal.’ … Rule 5:11(e) allows filing a ‘written statement of facts, testimony, and other incidents of the case’ in lieu of filing a transcript. … The rule defines ‘other incidents of the case’ to include ‘motions, proffers, objections, and rulings of the trial court.’ …

“The rule further provides an opportunity for any party to object to the written statement if that party believes it is erroneous or incomplete. … The trial court judge then may overrule the objections, make any corrections deemed necessary, include any accurate additions to create a complete record, or certify the manner in which the record is incomplete, and the judge then must sign the transcript or written statement. …

“The Supreme Court of Virginia has held that ‘[t]he purpose of Rule 5:11, in allowing an appellant to file a statement of facts, testimony, and other incidents of the case in lieu of a transcript, is to provide an appellant a means to establish a record for appellate review without incurring the substantial expense of obtaining a transcript, which for some appellants may prevent their ability to appeal from an adverse judgment.’ …

“[T]he statement is in lieu of a transcript of specific court proceedings. Hence, a proper statement of facts – in lieu of a transcript – summarizes the evidence or provides a narrative statement of testimony or argument, which then ‘furnish[es] a record of evidence and incidents of trial for appeal.’”

Statement unnecessary?

“[I]t is not clear why Plaintiffs feel the need to file a statement of facts. … Plaintiffs are appealing the Court’s ruling on Defendants’ demurrer, which was decided as a matter of law.

“The Hearing involved no witnesses, objections, or factual disputes, and the Court was required to assume that all allegations in Plaintiffs’ ‘Third Amended Complaint’ were true for purposes of ruling on the demurrer.”

The parties filed multiple post-hearing briefs. The court issued a letter opinion “that outlines in detail the background of the case, the positions of the parties, the legal standard, and a reasoned analysis of all issues.” Plaintiff filed 11 detailed objections to the court’s ruling (Exhibit D).

“It therefore is unclear what would be included in a statement of facts that could properly supplement the materials already in the file to support Plaintiffs’ appeal.”

Unable to certify

Assuming that a statement of facts is required in this case, the proposed statement is defective in several respects. “It does not contain a narrative statement describing the arguments made at the Hearing, which, as Defendants note, was not an evidentiary hearing. Instead, it appears that Plaintiffs attempt to use the Proposed Statement of Facts to argue the merits of their appeal.

“Indeed, circuit courts have rejected statements of facts that fail to recount the evidence and rulings of a court proceeding[.] … Moreover, almost seven months have passed since the March 31, 2021 hearing. Since the Hearing, the Court has heard hundreds of other cases. Hence, the Court cannot confidently recall the detailed arguments made by counsel – beyond those outlined in the Letter Opinion – and thus cannot correct Plaintiffs’ statement. …

“For the aforementioned reasons, this court is unable to certify the proposed Statement of Facts as contemplated by Rule 5:1 l(g) and submits this statement in lieu of a judge’s certificate regarding a proposed statement of facts.

“To the extent that the Supreme Court of Virginia disagrees with this Court regarding the propriety of Plaintiffs’ proposed statement of facts, the Court finds that Plaintiffs’ ‘Statement of Facts, Testimony, and Other Incidents of the Case’ is incomplete for the reasons discussed above.

“Further, to the extent rulings are required on Defendants’ objections, the Court sustains the objections contained in ‘Notice of Objection to Statement of Facts.’ The Court’s signature below attests to these factual findings for purposes of the Rule 5:11(g) certification requirement.”

Dillion, et al. v. Northam, et al., Oct. 28, 2021, Case No. CL20-3812, Virginia Beach Circuit Court (Statement in Lieu of Judge’s Certificate) (Lannetti). VLW 021-8-123, 56 pp.

VLW 021-8-123

Verdicts & Settlements

See All Verdicts & Settlements

Opinion Digests

See All Digests