Piccadilly Grill, etc v. VA ABC Board ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia
PICCADILLY GRILL AND BUFFET, INC. t/a
THE END ZONE SPORTS BAR & GRILL
MEMORANDUM OPINION * BY
v. Record No. 1567-02-2 JUDGE D. ARTHUR KELSEY
FEBRUARY 11, 2003
VIRGINIA ALCOHOLIC BEVERAGE
CONTROL BOARD
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
Paul T. Buckwalter, II, for appellant.
Frank S. Ferguson, Deputy Attorney General
(Jerry W. Kilgore, Attorney General; Rhonda
McGarvey, Senior Assistant Attorney General,
on brief), for appellee.
The Piccadilly Grill and Buffet, Inc. appeals the trial
court's decision affirming the Alcoholic Beverage Control Board's
revocation of Piccadilly's wine and beer license. Piccadilly
argues that the Board erred by refusing to permit Piccadilly's
owner to testify at the Board hearing after previously electing
not to testify on Fifth Amendment grounds before the
administrative hearing officer. See generally 3 Va. Admin. Code
§ 5-10-290(A) (Generally, "all evidence should be introduced at
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
hearings before hearing officers."). For two reasons, we refuse
to consider the merits of this argument.
First, we will not consider error assigned to the rejection
of testimony unless the proffered testimony has been "made a part
of the record." Evans v. Commonwealth, 39 Va. App. 229, 236, 572
S.E.2d 481, 484 (2002). An appellate court has "no basis for
adjudication unless the record reflects a proper proffer." Id.(quoting Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d
79, 81 (1977)); see also Holles v. Sunrise Terrace, Inc., 257 Va.
131, 135, 509 S.E.2d 494, 497 (1999); Williams v. Harrison, 255
Va. 272, 277, 497 S.E.2d 467, 471 (1998); Chappell v. Va. Electric
& Power Co., 250 Va. 169, 173, 458 S.E.2d 282, 285 (1995); Barrett
v. Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986).
A proper proffer may consist of "a unilateral avowal of
counsel, if unchallenged, or a mutual stipulation of the testimony
expected." Evans, 39 Va. App. at 236, 572 S.E.2d at 484 (citation
omitted). The proffer must state specifically the expected
testimony rather than counsel's theory of his case. See Lockhart
v. Commonwealth, 34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001)
(finding proffer inadequate where counsel provided argument rather
than an individual's expected answers to potential questions).
Second, Rule 5A:20(e) requires the appellant's brief to
include, among other things, the "principles of law, the
argument, and the authorities relating to each question
presented." Conclusory assertions in a brief —— unsupported by
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"argument, authority, or citations to the record" —— are
undeserving of appellate consideration. Thomas v. Commonwealth,
38 Va. App. 319, 321 n.1, 563 S.E.2d 406, 407 n.1 (2002);
Dickerson v. Commonwealth, 36 Va. App. 8, 15, 548 S.E.2d 230,
234 (2001); Bennett v. Commonwealth, 35 Va. App. 442, 452, 546
S.E.2d 209, 213 (2001); Buchanan v. Buchanan, 14 Va. App. 53,
56, 415 S.E.2d 237, 239 (1992).
Both of these procedural defaults apply to this case.
Though Piccadilly complains that its owner should have been
allowed to testify before the Board, Piccadilly made no proffer
of his testimony either to the Board or the trial court. We
have no way of knowing exactly what the owner would have said
had his testimony been received. Piccadilly's appellate brief
suffers from similar inadequacies. It contains broad assertions
of error unaccompanied by any specific citation to statutes,
administrative regulations, or controlling case law. For these
reasons, we will not consider Piccadilly's arguments on appeal.
Affirmed.
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