Proctor v. Town of Colonial Beach
In Proctor v. Town of Colonial Beach, 15 Va. App. 608, 425 S.E.2d 818 (1993), the Court observed that Rule 5A:8(c) imposes three requirements for a written statement of facts to be included in the record of a case on appeal:
it must be filed in the office of the clerk of the trial court within fifty-five days after entry of judgment;
a copy of the statement must be mailed or delivered to opposing counsel along with a notice that the statement will be presented to the trial judge between fifteen and twenty days after filing;
the trial judge must sign the statement, and the signed statement is to be filed in the office of the clerk. See Proctor, 15 Va. App. at 610, 425 S.E.2d at 819.
Once an appellant has complied with the first two steps, he or she has established prima facie compliance with the requirements of the Rule. See 15 Va. App. at 610, 425 S.E.2d at 820.
The trial judge must then either sign the statement, correct it and sign the corrected statement, or, if the judge cannot in good faith recall or accurately reconstruct the relevant proceedings, order a new trial. See id. at 611, 425 S.E.2d at 820.
In Proctor, the trial judge failed to sign the written fact statement.
Because of this omission by the trial court, the Court remanded the case with instructions for the judge to either sign the statement, correct it and sign it, or, if he could not accurately recall or reconstruct the facts of the case, order a new trial.
Rule 5A:8(c) states, in pertinent part:
In lieu of a transcript, a written statement of facts, testimony, and other incidents of the case . . . become a part of the record when:
(1) within 55 days after entry of judgment a copy of such statement is filed in the office of the clerk of the trial court. A copy must be mailed or delivered to opposing counsel accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing;
(2) the statement is signed by the trial judge and filed in the office of the clerk of the trial court.
The judge may sign the statement forthwith upon its presentation to him if it is signed by counsel for all parties, but if objection is made to the accuracy or completeness of the statement, it shall be signed in accordance with subsection (d) of this Rule.