PRESENT: All the Justices 

JOSHUA B. SHAPIRO 

 OPINION BY 

v. Record No. 082607 JUSTICE LEROY F. MILLETTE, JR. 

 January 15, 2010 

FREDERICK YOUNKIN, JR. 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Patricia L. West, Judge 

In this appeal, we consider whether the trial judge erred 

in dismissing with prejudice a plaintiff’s appeal from a general 

district court judgment based on the plaintiff’s failure to 

obtain the services of a court reporter in contravention of the 

circuit court’s general directive that a court reporter be 

present at the trial of all civil cases. 

BACKGROUND

 This case arises out of a landlord-tenant dispute. Because 

the facts of the underlying dispute are not pertinent to the 

resolution of this appeal, they will not be discussed. The 

relevant facts are procedural in nature. 

Joshua B. Shapiro filed suit in the General District Court 

of the City of Virginia Beach against Frederick Younkin, Jr. 

The general district court dismissed Shapiro’s claims with 

prejudice. Shapiro, appearing pro se, appealed the decision of 

the general district court to the Circuit Court of the City of 
Virginia Beach. Trial in the circuit court was set for October 

29, 2008. 

By final order, the trial judge dismissed Shapiro’s appeal 

with prejudice based on Shapiro’s “non-compliance with Court 

Rules and Procedures.” Our analysis is not affected by the 

circuit court’s purported reliance on its own internal rules and 

procedures in rendering judgment in this case. We therefore 

need not reach the issue of the validity of the circuit court’s 

relevant rules and procedures requiring the presence of a court 

reporter to record all civil proceedings. 

We note, however, that while Code § 8.01-4 authorizes 

circuit courts to prescribe rules to “promote proper order and 

decorum and the efficient and safe use of courthouse facilities 

and clerks’ offices,” the statute prohibits any such rule which 

is inconsistent with any statute or “has the effect of abridging 

the substantive rights of persons before such court.” As we 

stated in Collins v. Shepherd, 274 Va. 390, 649 S.E.2d 672 

(2007), the authority delegated to circuit courts by Code 

§ 8.01-4 “must be carefully exercised so that local rules do not 

encroach upon statutes, Rules of Court, or case law,” and local 

rules must not “deprive any party from having a case heard on 

the merits, reflecting the General Assembly’s intention that 

local rules govern the administration, but not become the 

determining factor in the ultimate outcome, of cases.” Id. at 

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399, 649 S.E.2d at 676; see also Martin v. Duncan, 277 Va. 204, 

208, 671 S.E.2d 151, 153 (2009). 

In this case, Shapiro had failed to comply with a 

requirement imposed by the judges of the circuit court that a 

court reporter be present at the trial of all civil cases to 

record the proceedings, and that a party appealing a case from 

the general district court arrange to have a court reporter 

present at trial in the circuit court. A footnote in the final 

order dismissing Shapiro’s appeal explained that “[p]arties who 

wish this requirement to be waived must receive approval from a 

judge prior to the trial date,” which Shapiro had not done. 

Although Shapiro had not requested a hearing before the 

trial date to obtain a waiver of the requirement that he obtain 

a court reporter, he requested such a waiver immediately before 

the trial began on the ground of indigency. The trial judge 

denied Shapiro’s request for a waiver based on the court’s 

finding that Shapiro had sufficient funds to pay for the 

services of a court reporter. Additionally, the trial judge 

concluded that there was “a high likelihood of appeal by the 

non-prevailing party and determined that a court reporter was 

required in that a statement of facts would be insufficient for 

appeal.” 

On the day of trial, after his case was dismissed, Shapiro 

submitted to the circuit court a proposed written statement of 

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facts in lieu of a transcript for purposes of appeal to this 

Court.1 The circuit court refused to certify Shapiro’s statement 

of facts. The trial judge wrote directly on the proposed 

statement of facts that 

[t]he events of this day are reflected in the 

court’s order and are sufficient for the appeal. 

I do not agree that this document accurately 

reflects the events of the day however it does 

prove my point that a court reporter would be 

needed in this case. Mr. Shapiro may argue 

whatever he wants on appeal or mis-state events 

in his petition if he so chooses, but I will not 

agree that this document go up as the “Statement 

of Facts.” The case was dismissed on procedural 

grounds which are clearly covered in the order. 

No “Statement of Facts” should be necessary on 

appeal of a strictly procedural ruling.2

On appeal to this Court, Shapiro argues that the circuit 

court erred by dismissing his case in violation of Code § 17.1-

128, which provides, in pertinent part, that 

[i]n all civil cases, the court or judge trying 

the case may by order entered of record provide 

for the recording verbatim of the evidence and 

incidents of trial either by a court reporter or 

by mechanical or electronic devices approved by 

the court. The expense of reporting and recording 

the trial of a civil case shall be paid by the 

litigants in the manner and in the proportion as 

the court may in its discretion direct. A 

transcript of the record, when required by any 

party, shall be paid for by such party. The 

court on appeal may provide that such cost may, 

in civil cases, be reimbursed to the party 

 1

 In Shapiro’s timely filed notice of appeal, Shapiro 

certified that he had notified Younkin that a written statement 

of facts had been submitted to the circuit court. 

2

 The trial judge’s handwritten notes were dated “10/29/08” 

and initialed “PLW.” 

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prevailing. The failure to secure the services 

of a reporter, or the failure to have the case 

reported or recorded for any other reason, shall 

not affect the proceeding or trial. 

(Emphasis added.) Shapiro maintains that the circuit court also 

violated Rule 5:11 by refusing to certify his proposed written 

statement of facts, which he timely submitted in lieu of a 

transcript. 

Younkin, also appearing pro se in both the circuit court 

and this Court, did not file a brief in opposition to Shapiro’s 

appeal in this Court. Instead, he submitted a memorandum to the 

Clerk of this Court, in which he stated his position that this 

“Court should not hear any arguments other than the procedural 

arguments,” because the circuit court “did not address the 

merits of the underlying case.” 

ANALYSIS

 We agree with Shapiro that the trial judge violated both 

Code § 17.1-128 and Rule 5:11 in dismissing his case based 

solely on his failure to secure the services of a court reporter 

for trial. When statutory language is unambiguous, we are bound 

by the plain meaning of that language. Britt Construction, Inc. 

v. Magazzine Clean, LLC, 271 Va. 58, 62, 623 S.E.2d 886, 888 

(2006); Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 

468, 470 (2003). The trial judge’s action directly violated the 

unambiguous language and mandate of Code § 17.1-128 that “[t]he 

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failure to secure the services of a reporter, or the failure to 

have the case reported or recorded for any other reason, shall 

not affect the proceeding or trial.” (Emphasis added.) 

Manifestly, the trial judge’s dismissal of Shapiro’s case based 

on his failure to secure the services of a court reporter 

“affect[ed] the proceeding or trial.” Id.

 The circuit court’s actions also violated Rule 5:11. 

Pursuant to Rule 5:11(c), a party may submit a written statement 

of facts, testimony, and other incidents of the case in lieu of 

a transcript. Such statement of facts becomes a part of the 

record if the procedural requirements enumerated in Rule 5:11(c) 

are fulfilled. 

Subsection (c)(1) of Rule 5:11 addresses filing and notice 

requirements, which are not at issue here. Subsection (c)(2) of 

the Rule requires that “the statement [be] signed by the trial 

judge and filed in the office of the clerk of the trial court.” 

If the parties have endorsed the proposed statement of facts, 

the trial judge may sign it immediately. Rule 5:11(c)(2). 

However, if a party objects to the accuracy or completeness of 

the proposed statement of facts, then the trial judge shall sign 

it after complying with the provisions of Rule 5:11(d). 

 Under Rule 5:11(d), when objections are properly made to 

the statement of facts, the trial judge is directed to (1) 

overrule the objections, (2) make any corrections that he or she 

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finds necessary, (3) include any accurate additions to make the 

record complete, or (4) certify the manner in which the record 

is incomplete, and (5) sign the written statement. 

Additionally, “the trial judge may, after notice to counsel and 

hearing, correct the . . . written statement.” Rule 5:11(d). 

The 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. Rule 5:11 also provides litigants and trial courts 

guidance regarding the actions to take to ensure that the record 

on appeal is accurate and complete. We have stated that 

[t]o enable us to effectively fulfill our 

function of appellate review it is usually 

necessary for us to have an accurate transcript 

or written statement of the testimony and 

incidents of trial in the case before us. 

Therefore, we have promulgated Rule 5:11 so that 

counsel, or the trial judge on his [or her] own 

initiative, may have a simple procedure available 

to correct errors of commission or omission in 

the transcript or written statement. 

Lamb v. Commonwealth, 222 Va. 161, 164, 279 S.E.2d 389, 391 

(1981). Thus, under Rule 5:11, a trial judge is authorized to 

correct errors or deficiencies on his or her own initiative. 

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We previously have considered cases in which trial judges 

have refused to certify proposed written statements of fact. In 

Harris v. Woodby, Inc., 203 Va. 946, 128 S.E.2d 278 (1962), we 

considered a situation in which the trial judge refused to 

certify a party’s “narrative statement of testimony,” finding 

that it did “not accurately and completely set forth the 

testimony at the time of trial.” Id. at 947-48, 128 S.E.2d at 

280. The opposing party objected that the proposed statement 

was not accurate and complete, but did not tender an alternative 

written statement. Id. at 947, 128 S.E.2d at 280. 

We held that although the proposed statement was not 

accurate or complete, and the difficulty in preparing a proper 

statement likely was due to disagreement of counsel and the 

judge as to its contents, it was the trial judge’s duty to 

resolve the conflict by “mak[ing] such alterations in and 

additions to the . . . statement as w[ould], in his [or her] 

opinion, render the same accurate.” Id. at 949, 128 S.E.2d at 

280-81. We further held that if a trial judge remains unable to 

formulate an accurate statement of the evidence, then the proper 

remedy is to order a new trial. Id. at 949, 128 S.E.2d at 281. 

Because the trial judge in that case failed to discharge this 

duty, we reversed and remanded the case for a new trial. Id.

In Woods v. R.D. Hunt & Son, Inc., 207 Va. 281, 148 S.E.2d 

779 (1966), a trial judge refused to certify that a party’s 

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“narrative statement of the proceedings including testimony and 

evidence of the trial” was an authentic statement of the 

proceedings. Id. at 282-83, 148 S.E.2d at 780-81. At a 

conference regarding the proposed filing of the narrative 

statement, the trial judge informed counsel that he “would 

require the transcript of the evidence in th[e] case to be 

written up or the same to be agreed upon by the parties,” and 

that he could not remember all the material evidence and took no 

notes at trial because a court reporter was present at the 

trial. Id.

Counsel for the opposing party informed the trial judge 

that he could not agree with the proposed narrative statement 

because it was incomplete and inaccurate. Counsel accordingly 

filed his objections and “reasons for refusal to endorse” the 

narrative. He also asserted that in reliance on the court 

reporter, he had not taken adequate notes, and was unable to 

recall the details of the testimony or the arguments presented 

on the technical issues of law considered at trial. Id. at 283, 

148 S.E.2d at 781. Under the facts and circumstances of the 

case, we held that 

[w]here a court reporter is employed during the 

trial of a civil case and the trial judge, 

relying upon the availability of a transcript, 

fails to make adequate notes and cannot recall 

the material evidence and incidents of trial in 

dispute with accuracy at the time the narrative 

statement is presented, he may require the 

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appealing party to provide so much of the 

transcript as may be necessary for him to be 

assured what he is certifying is authentic. 

Id. at 287, 148 S.E.2d at 783. 

After stating this principle, we affirmed the circuit 

court’s judgment. We concluded that the trial judge’s request 

for a transcript was reasonable and that, therefore, the circuit 

court did not err in refusing to certify the proposed narrative 

statement “or in failing to make alterations in, and additions 

to, the statement in an attempt to render it accurate and then 

sign it.” Id.

 More recently, in White v. Morano, 249 Va. 27, 452 S.E.2d 

856 (1995), under facts similar to our decision in Woods, we 

held that a trial judge did not err by refusing to sign a 

party’s proposed “[w]ritten [s]tatement of the [f]acts, 

[t]estimony and [o]ther [i]ncidents of the [c]ase.” Id. at 29, 

32, 452 S.E.2d at 857, 859. The two-day jury trial at issue had 

included the testimony of 15 witnesses, all of which was 

recorded by a court reporter. Id. at 29, 452 S.E.2d at 857. 

The appealing party filed a proposed statement of facts, which 

was contested by the opposing party as inaccurate and 

incomplete. Id.

After the trial judge held a hearing on the objections and 

the parties were unable to agree on a narrative statement, the 

trial judge filed a “[s]tatement in [l]ieu of [j]udge’s 

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[c]ertificate [p]ursuant to Rule 5:11(d) of the Rules of the 

Supreme Court of Virginia.” Id. In the trial judge’s statement 

in lieu of certification, he stated that the court was unable to 

comply with Rule 5:11 because, among other things, he was unable 

to recall the details of the testimony of the 15 witnesses. The 

trial judge further noted that because a court reporter had 

transcribed the proceedings throughout trial, the judge had not 

considered it necessary to take meticulous notes. Id. at 29-30, 

452 S.E.2d at 858. 

Upon considering these circumstances, we determined that 

“the trial judge understandably concluded that he could not 

remember the facts adduced at trial ‘well enough to certify 

appellant’s statement.’” Id. at 31, 452 S.E.2d at 859. We also 

observed that the preparation of a full transcript is not always 

necessary in order to present an accurate and complete record 

for appeal. Id. at 32, 454 S.E.2d at 859. Because there was no 

indication in the record that the appealing party attempted to 

obtain the trial judge’s assistance in compiling an accurate and 

complete record, we held that the circuit court acted reasonably 

in refusing to sign the proposed statement of facts, and we 

affirmed the circuit court’s judgment. Id.

In the present case, when Shapiro submitted his proposed 

written statement of facts, the trial judge did not correct the 

proposed statement by making any corrections or additions, nor 

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did she certify the manner in which the statement was incorrect 

and sign the statement. Instead, the trial judge wrote on the 

front of the statement that “[t]he events of this day are 

reflected in the court’s order and are sufficient for the 

appeal. I do not agree that this document accurately reflects 

the events of the day . . . .” The trial judge simply 

determined that the final order was sufficient for purposes of 

appeal, and “[n]o ‘Statement of Facts’ should be necessary on 

appeal” because “[t]he case was dismissed on procedural grounds 

which are clearly covered in the order.” 

We conclude based on these notations that, at a minimum, 

the trial judge should have complied with Rule 5:11 by 

certifying the manner in which the record was incomplete and by 

signing the proposed statement of facts. Therefore, we hold 

that the trial judge erred in failing to comply with Rule 5:11. 

We further observe that the present case is unlike our 

prior cases in several respects. Here, both parties appeared 

before the circuit court pro se. The defendant, Younkin, did 

not file any objections to the proposed statement of facts and, 

therefore, no hearing on objections was held. Most 

significantly, however, this case is different from our prior 

cases because the trial judge dismissed Shapiro’s case outright 

without taking any evidence, based solely on Shapiro’s failure 

to obtain the services of a court reporter. 

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We take this opportunity to emphasize that in the absence 

of a written transcript, when a litigant has taken all available 

measures to provide the circuit court with an accurate and 

complete record of the proceedings, and the trial judge 

nevertheless is unable to create a complete written statement 

for purposes of appeal after consultation with all parties, the 

proper remedy is to order a new trial so that a proper 

transcript or statement can be prepared. Harris, 203 Va. at 

949, 128 S.E.2d at 281. A circuit court is not authorized to 

dismiss a case based solely on a litigant’s failure to obtain 

the services of a court reporter, and later to refuse to certify 

the litigant’s proposed statement of facts because it is 

inaccurate. The trial judge must make an affirmative attempt to 

create a record for appellate review that contains a fair 

statement of the facts by making “reasonable additions, 

deletions, or changes,” or must certify the manner in which the 

record is incomplete. New Bay Shore Corp. v. Lewis, 193 Va. 

400, 404, 69 S.E.2d 320, 323 (1952); Rule 5:11(d). 

 For these reasons, we will reverse the circuit court’s 

judgment and remand the case to the circuit court for a trial on 

the merits. 

Reversed and remanded. 

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