                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia


RAYNHAM T. HEARD
                                         MEMORANDUM OPINION * BY
v.   Record No. 1120-01-3             JUDGE JERE M. H. WILLIS, JR.
                                            FEBRUARY 26, 2002
JANICE A. HEARD


             FROM THE CIRCUIT COURT OF ROANOKE COUNTY
                   Diane McQ. Strickland, Judge

          Raynham T. Heard, pro se.

          No brief or argument for appellee.


     Code § 8.01-335 provides, in pertinent part:

          B. Any court in which is pending a case
          wherein for more than three years there has
          been no order or proceeding, except to
          continue it, may, in its discretion, order
          it to be struck from its docket and the
          action shall thereby be discontinued. The
          court may dismiss cases under this
          subsection without any notice to the
          parties. The clerk shall provide the
          parties with a copy of the final order
          discontinuing or dismissing the case. Any
          case discontinued or dismissed under the
          provisions of this subsection may be
          reinstated, on motion, after notice to the
          parties in interest, if known, or their
          counsel of record within one year from the
          date of such order but not after.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On September 11, 1997, Raynham T. Heard appealed to the

trial court orders entered in the Juvenile and Domestic

Relations District Court of Roanoke County, the substance and

effect of which he has not specified.    The matter continued on

the trial court's docket, with no order or proceeding except to

continue it, until February 28, 2001, when the trial court

entered an order discontinuing it and striking it from its

docket pursuant to Code § 8.01-335(B).   Heard does not dispute

the merits of that action.

     Although the statute and the trial court's order required

notice of its action to Heard, his first notice of the

discontinuance of his appeal was his receipt on April 19, 2001,

of a letter dated April 16, 2001, informing him of the court's

action.   After receiving this notice, Heard did not seek

reinstatement of his appeal pursuant to the statute.   Rather, he

undertook this appeal.

     On appeal, Heard poses the following question:

           Was the appellant wrongly denied proper
           notice of the Docket call and the subsequent
           orders until it was too late for him to
           timely represent his interests before the
           Court?

He has provided us no record to assist us in appraising his

contentions.   Thus, we consider the question that he poses on

appeal in the light of the record furnished by the trial court.

     Heard first complains that he was given no notice of the

February 28, 2001 docket call and the proposed discontinuance of

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his case.   The statute expressly declares such notice

unnecessary.   It is the duty of a party maintaining an action in

court to keep track of it and to pursue his rights and remedies

diligently.    The trial court's action on February 28, 2001

denied Heard no notice or process that was due him.

     Heard next complains that the trial court clerk's failure

to send him timely notice of the discontinuance of his case

denied him the opportunity to "represent his interests before

the Court."    If by "the Court" Heard means the trial court, the

statute provided him one year from the discontinuance of his

case, ten months of which remained as of the time he received

notice of the discontinuance from the trial court's clerk, in

order to seek reinstatement.   His election not to pursue that

remedy was a decision of his own choosing.   That decision in no

way related to the timing of his notice from the trial court's

clerk.

     If Heard's question is read to assert the denial of an

opportunity to represent his interests before this Court, the

procedural record of the case refutes his position.   We have

received and considered his appeal.

     The trial court's remand of the matter to the juvenile and

domestic relations district court was consistent with the

requirements and purpose of Code § 16.1-298(A).

     The judgment of the trial court is affirmed.

                                                         Affirmed.

                                - 3 -
Clements, J., concurring.

     I concur in the majority's conclusion affirming the judgment

of the trial court.   However, I would reach that conclusion by

finding appellate review procedurally barred in this case because

appellant failed to provide this Court with an appendix as

required by Rule 5A:25.

     Rule 5A:25 provides that "[a]n appendix shall be filed by the

appellant in all cases" brought before this Court.   Seven copies

of the appendix are to be filed.   Rule 5A:25(b); Rule 5A:19(e).

The appendix must include everything that is germane to the

appeal.   See Rule 5A:25(c).   In considering a case on appeal, we

may look beyond the appendix into the record, but we are not

required to do so.    See Rule 5A:25(h).

     As the majority acknowledges, the appellant in this case

filed no appendix "to assist us in appraising his contentions."

The only document he filed with this Court was his brief, which,

coincidentally, did not include any "references to the pages of

the . . . record," as required by Rule 5A:20.1   Nevertheless, the

majority chooses to "consider the question [the appellant] poses

on appeal in the light of the record furnished by the trial

court."   I would not do so.



     1
       We have consistently stated that "[w]e will not search the
record for errors in order to interpret the appellant's contention
and correct deficiencies in a brief." Buchanan v. Buchanan, 14
Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
        As the Supreme Court wrote in Thrasher v. Burlage, 219 Va.

1007, 1009-10, 254 S.E.2d 64, 66 (1979) (per curiam):

                  The appendix is a tool vital to the
             function of the appellate process in
             Virginia. Without it, the seven Justices of
             this Court would have to pass the original
             record from one to the other. Much of the
             contents, though material at trial, may be
             utterly irrelevant to the issues posed on
             appeal. By requiring the publication and
             distribution of an appendix which excludes
             all irrelevancies, the Rules of Court
             expedite the adjudication of the appeal and
             reduce the costs. By requiring the
             inclusion of all parts of the record germane
             to the issues, the Rules promote the cause
             of plenary justice.

        While the panel of judges considering the instant case on

appeal consisted of only three judges, the same principles apply

here.    Additionally, the judges of this Court are diversely

situated throughout the Commonwealth.    Thus, the filing of an

appendix, as required by the Rules, is, in my opinion, "essential

to an informed collegiate decision."     Id.

        Furthermore, we do not presume on appeal that the trial court

has erred.    Indeed,

             "[w]e have many times pointed out that on
             appeal the judgment of the lower court is
             presumed to be correct and the 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. If the appellant fails to do
             this, the judgment will be affirmed."




                                 - 5 -
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6

(1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,

256-57 (1961)).

     For these reasons, I would hold that we are barred from

considering the question before us and would affirm the judgment

of the trial court.




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