COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Ortiz and Senior Judge Haley

CYNTHIA P. OLIVER

MEMORANDUM OPINION*

v. Record No. 0225-23-2 PER CURIAM

OCTOBER 24, 2023

KIMBERLY A. PINCHBECK, P.C.

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Frederick G. Rockwell, III, Judge Designate

(Danny Zemel; Anthony F. Troy; The Krudys Law Firm, PLC; The 

Stanley Law Group, PLLC, on briefs), for appellant.

(Amanda J. Foster; Kimberly A. Pinchbeck; Kimberly A. Pinchbeck, 

P.C., on brief), for appellee. Appellee submitting on brief.

Cynthia P. Oliver appeals the circuit court’s judgment awarding $65,472.47 in unpaid legal 

fees for Kimberly A. Pinchbeck, P.C. We have reviewed the parties’ pleadings, fully examined the 

proceedings, and determined the case to be wholly without merit as set forth below. Thus, the panel 

unanimously holds that oral argument is unnecessary. Code § 17.1-403(ii)(a); Rule 5A:27(a). 

Oliver failed to timely file the transcript or a written statement of facts in lieu of a transcript 

necessary to the appeal pursuant to Rule 5A:8. As a result, we cannot reach the merits of her

assignments of error. Consequently, we affirm the judgment.

BACKGROUND

Pinchbeck represented Oliver in legal proceedings involving an estate dispute in 

Chesterfield County Circuit Court. Oliver filed a motion to have $82,819.24 of her attorneys’ fees 

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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due to Pinchbeck paid by the estate. The circuit court ordered that the estate pay only $22,500 of 

Oliver’s fees, but also found Pinchbeck’s fees “to be reasonable in their totality.”

Pinchbeck filed a subsequent complaint against Oliver for $65,472.47 in unpaid legal fees. 

Pinchbeck moved for summary judgment relying upon the circuit court’s prior order determining 

her fees to be reasonable. After both parties briefed the issues and presented oral argument at a 

November 2, 2022 hearing, the circuit court granted summary judgment based upon the prior order 

and awarded Pinchbeck the full amount sought in her complaint. This appeal followed.

ANALYSIS

“We review the trial court’s grant of summary judgment de novo.” VACORP v. Young, 

298 Va. 490, 494 (2020). For a moving party to be entitled to summary judgment, it must be 

“demonstrate[d] that no ‘material’ facts are ‘genuinely in dispute.’” AlBritton v. Commonwealth, 

299 Va. 392, 403 (2021). “It follows that immaterial facts genuinely in dispute or material facts 

not genuinely in dispute do not preclude the entry of summary judgment.” Id.

Oliver argues on appeal that the circuit court erred in finding no material facts genuinely 

in dispute based on the prior order and also by placing an improper burden on Oliver in granting 

summary judgment. To conduct a de novo review of summary judgment, this Court must review 

both the written pleadings and the positions asserted at oral argument. 

“[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).
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The circuit court heard argument on summary judgment on November 2, 2022. Oliver did 

not provide a transcript or a written statement of facts regarding what specific arguments the parties 

presented to the circuit court and what legal authority supported their positions. In rendering 

judgment, the circuit court relied upon not only the pleadings and briefs, but also the arguments and 

evidence presented at that hearing.

With no transcript or written statement of facts pertaining to the November 2, 2022 hearing, 

we cannot evaluate the circuit court’s judgment or determine whether the circuit court erred in the 

manner that Oliver asserts. Nor can we determine the arguments that Oliver preserved for appellate 

review. A transcript or written statement of facts pertaining to the November 2, 2022 hearing is 

thus “indispensable to the determination of the case.” Bay v. Commonwealth, 60 Va. App. 520, 528 

(2012) (quoting Turner v. Commonwealth, 2 Va. App. 96, 99 (1986)). Therefore, we cannot 

address the merits of Oliver’s assignments of error. Rule 5A:8(b)(4)(ii).

CONCLUSION

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.