Estate of Clarence Hilliard Rothe v. Centra Health, Inc. ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Ortiz and Senior Judge Haley
UNPUBLISHED
ESTATE OF CLARENCE HILLIARD ROTHE
MEMORANDUM OPINION*
v. Record No. 1334-22-3 PER CURIAM
JUNE 6, 2023
CENTRA HEALTH, INC.
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Jr., Judge
(J.A. Currin; Equal Justice Center, PLC, on brief), for appellant.
(Pavlina B. Dirom; Caskie & Frost, P.C., on brief), for appellee.
The Estate of Clarence Hilliard Rothe appeals the final order awarding Centra Health, Inc.
(Centra) $98,181.25 in damages for breach of implied contract.1 Rothe argues that the circuit court
erred in denying two motions for continuance and finding sufficient evidence of an implied contract
and damages. Rothe failed to provide any transcripts or written statements of facts indispensable to
appellate review of the assignments of error. Rule 5A:8(b)(4)(ii). The panel therefore unanimously
holds that oral argument is unnecessary because “the appeal is wholly without merit” and affirms
the order of the circuit court. Code § 17.1-403(ii)(a); Rule 5A:27(a).
BACKGROUND
Centra filed a complaint against Rothe in the Circuit Court of the City of Lynchburg
asserting breach of an implied contract and claiming $98,181.25 in damages. Rothe filed an answer
disputing the existence of a contract or damages. After a trial on August 4, 2022, the circuit court
*
This opinion is not designated for publication. See Code § 17.1-413.
1
Rothe passed away while the appeal was pending, and his estate was substituted as the
appellant.
entered a final order awarding Centra its full claim of damages. Rothe failed to file any transcripts
or a written statement of facts about the August 4, 2022 hearing.
ANALYSIS
Rothe first argues that the circuit court erred in denying his motions to continue, both at
the start of the hearing and after the evidence was submitted. Granting a motion to continue “is
within the sound discretion of the circuit court” and is reviewed on the deferential “abuse of
discretion” standard. Bailey v. Commonwealth, 73 Va. App. 250, 259 (2021) (quoting Haugen v.
Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007)).
Rothe’s other assignments of error allege that the circuit court erred in finding sufficient
evidence of an implied contract and damages. “A circuit court judgment ‘shall not be set aside
unless it appears from the evidence that such judgment is plainly wrong or without evidence to
support it.’” Davis v. Davis, 298 Va. 157, 167 (2019) (quoting Code § 8.01-680). We defer “to
the trial court’s factual findings and view the facts in the light most favorable to the prevailing
party, but we review the trial court’s application of the law to those facts de novo.” Id. (quoting
Tuttle v. Webb, 284 Va. 319, 324 (2012)).
The record before us on appeal contains no transcript or written statement of facts in lieu
of a transcript concerning the proceedings on August 4, 2022, that resulted in final judgment
against Rothe. “[T]he burden is on the appellant to present to us a sufficient record from which
we can determine whether the lower court has erred in the respect complained of.” Smith v.
Commonwealth, 16 Va. App. 630, 635 (1993) (quoting Justis v. Young, 202 Va. 631, 632
(1961)). “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).
-2-
Without a transcript or written statement of facts of the trial, we are unable to determine
the evidence that was presented, the parties’ arguments to the circuit court in support of their
claims, or the circuit court’s rationale or legal basis for its decisions. A transcript or written
statement of facts is thus indispensable to our review of the assignments of error that Rothe
raises on appeal. As such, we are unable to consider appellant’s assignments of error.2 See Rule
5A:8(b)(4)(ii).
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
2
Rothe blames Centra for failing to secure a court reporter or “craft a joint Statement of
Facts.” However, Rule 5A:8 does not require the parties to agree before the appellant files the
statement of facts in the circuit court. Rule 5A:8(c), (d). Ultimately, it is appellant’s, not
appellee’s, responsibility to provide this Court with a sufficient record for appellate review.
Smith, 16 Va. App. at 635.
-3-