Opinion
Docket No.: CL16-11133
02-16-2018
TRILLIUM NUMISMATICS, LLC, Plaintiff, v. CYNTHIA D. DOWLING, Defendant.
ORDER OVERRULING DEFENDANT'S EXCEPTIONS TO THE COMMISSIONER'S REPORT
Certain matters were referred to Michael F. Fasanaro, Jr., Commissioner in Chancery, by Decree of Reference dated March 6, 2017. After receiving submissions from the parties and presiding over two hearings, the Commissioner filed the Report of Commissioner Michael F. Fasanaro, Jr. (the "Report"), with exhibits, on October 4, 2017. Defendant filed Cynthia D. Dowling's Exceptions to the Commissioner's Report on October 13, 2017, challenging, inter alia, the sufficiency of the evidence on which the Commissioner based the findings of fact included in the Report. A hearing (the "Hearing") was held regarding the exceptions on December 6, 2017.
According to the Commissioner, neither party arranged for a court reporter to be present, so no transcripts of the Commissioner hearings are available.
The exhibits are not referenced in the Report. They consist of six documents—annotated with what appear to be the Commissioner's rulings regarding admission into evidence—that apparently were offered into evidence at the Commissioner hearings. --------
The parties provided various post-Hearing submissions, and the Court requested by letter dated December 19, 2017, that the Commissioner forward to the Court any evidence not already filed with the Court that he considered in reaching the findings of fact included in the Report. The Commissioner responded by letter dated January 2, 2018, forwarding additional documentation. The Court now rules on Dowling's exceptions to the Report.
Applicable Law
The Court is tasked with confirming or rejecting a Commissioner's Report, "in whole or in part, according to the view which it entertains of the law and the evidence." Va. Code § 8.01-610 (2017 Repl. Vol.). "When exceptions are filed to the report it is the duty of the court to examine the evidence and review the conclusions of the commissioner and determine for itself the correct decision to be made." Raiford v. Raiford, 193 Va. 221, 231, 68 S.E.2d 888, 894 (1952). In evaluating exceptions to the report of a Commissioner who has heard evidence ore tenus, "due regard [must be given] to the commissioner's ability . . . to see, hear, and evaluate the witnesses at first hand." Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 297 (1984). "This rule applies with particular force to a commissioner's findings of fact based upon evidence taken in his presence but is not applicable to pure conclusions of law contained in the report." Id. (citations omitted). "While the report of a commissioner in chancery does not carry the weight of a jury's verdict, . . . it should be sustained unless the trial court concludes that the commissioner's findings are not supported by the evidence." Id. at 576-77, 318 S.E.2d at 296; see also Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990) ("Because of the presumption of correctness, the trial judgment ordinarily must sustain the commissioner's report unless the trial judge concludes that it is not supported by the evidence."); Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 19.6 (6th ed. 2017) ("The report is thus to be accepted as prima facie correct, and the court should take cognizance of the fact that the commissioner has had an opportunity, not given to the court, to observe the demeanor of witnesses and form an opinion of their credibility." (citing Hill, 227 Va. 569, 318 S.E.2d 292)).
Discussion
The Court has considered the Report, the documents filed with the Report, the additional documents provided to the Court by the Commissioner that he considered, Defendant's exceptions to the Report, Plaintiff's responses to Defendant's exceptions, additional post-Hearing documents submitted to the Court, evidence and oral argument presented at the Hearing, and applicable authorities. The Court fully appreciates the Commissioner's opportunity to observe and evaluate the witnesses and—without the benefit of even a transcript—the Court is unable to assess the testamentary evidence considered by the Commissioner. See Hill, 227 Va. at 577, 318 S.E.2d at 297. Based on the information available to the Court, and in light of not having the benefit of either observing the witnesses when they appeared before the Commissioner or reviewing transcripts of the witnesses' testimony, the Court is unable to conclude that the Commissioner's findings—as expressed in the Report—are not supported by the evidence.
The Court notes, however, that the Commissioner identified several possible remedies available to Trillium Numismatics, LLC ("Trillium"), some of which are mutually exclusive. Specifically, the Commissioner found that Trillium "is entitled to have the property sold to satisfy the judgment," "the real estate in question could be sold to satisfy the lien," "the residence in question should be sold to satisfy the claim in question," and "the rent of $1,000.00 per month, would, over four plus years, cover the judgment of approximately $42,000.00, plus 6% interest, and so recommends." (Report 2-3.) The Court therefore does not adopt or direct a specific remedy at this time.
CONCLUSION
Based on the foregoing, Defendant Cynthia C. Dowling's exceptions to the Report are OVERRULED, and the Court will accept the Commissioner's Report as submitted. If the parties are unable to resolve the case in light of the Commissioner's findings, they are directed to contact the Judicial Docket Administrator, Wendy Spivey, within the next fourteen days to select a trial date and enter a Scheduling Order.
Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail or email copies of this Order to all counsel of record.
IT IS SO ORDERED this 16th day of February, 2018.
/s/_________
David W. Lannetti
Circuit Court Judge