(Posted September 13, 2018) There are no decisions, published or unpublished, from the justices today, so let’s take a peek at another appellate story.

I live in Virginia’s Second Congressional District, a place with a purplish hue. The incumbent Congressman, Scott Taylor, is facing a serious challenge from Democratic nominee Elaine Luria, in a year in which being a Republican can warrant hazardous-duty pay.

The 2016 Democratic candidate, Shaun Brown, sought to join Taylor and Luria on the ballot, running as an independent. The effect of her candidacy would patently hurt Luria, as Brown would drain Democratic voters and help assure Taylor’s reelection. Brown circulated petitions and gained enough signatures to get onto the ballot. Democrats fumed; Taylor probably smiled quietly.

And then a local radio station started poking around at the petitions, and found some irregularities. This signatory is dead. That one moved to another state a few years ago. Things got worse: Several of the persons who circulated the petitions, and swore that the signatures were genuine, turned out to be paid campaign staffers of Taylor. The local newspaper got involved, and discovered that many of the persons whose names were on the petitions denied ever having signed them.

Why am I talking politics here at the notoriously apolitical VANA? Because this campaign generated litigation, and that litigation made its way to Ninth and Franklin this week. The Democratic Party sued Brown, joining the State Board of Elections, seeking Brown’s removal from the ballot. A Richmond Circuit Court judge held a hearing last week and ruled in favor of the party; he described the petitions as containing “out-and-out fraud.” The court granted a writ of mandamus and an injunction last Wednesday, September 5, directing the Board to remove Brown’s name from the petition.

The Board, which (I understand) had taken a passive approach to the litigation, made the necessary preparations to obey the court’s order. But on Monday, September 10, Brown appealed, asking the Supreme Court to expedite the appeal and stay the circuit court’s order pendent lite. You’ll note that that’s three days ago.

Last night, the Supreme Court dismissed the appeal without prejudice. It noted that while the circuit court had granted mandamus relief, there was still other pleaded relief on which the court hadn’t ruled. That made the order interlocutory and hence unappealable.

The Supreme Court’s order also observes that it’s possible to get immediate review of an injunction by a petition for review under Code §8.01-626, so in theory, Brown could get review that way. Brown had filed a plain-vanilla petition for appeal, not a petition for review, but the court goes ahead and addresses the case as though she had properly requested that relief.

Even that approach falls flat: a 626 petition “shall be accompanied by a copy of the proceedings, including the original papers and the court’s order respecting the injunction.” Brown’s petition didn’t include those papers, so the justices can’t proceed that way. Seeing no way to adjudicate the appeal, the court dismisses it without prejudice.

Without prejudice? Doesn’t that give Brown an avenue to refile? Technically, yes; but by the time she can do that, it will assuredly be too late. The court’s order allows her to appeal a final order in the litigation, and that will come after a trial. By that point, likely well after November 6, the issue will be moot.

This case presents two key issues. The first is the importance of knowing how to properly file a snap appeal. Those don’t come along very often, so lawyers who don’t handle many appeals need to be very careful in preparing them. (Either that, or hire an appellate lawyer.)

The second issue warrants a separate essay, and I’ll do what’s necessary to post one in the near future: How does an appellant proceed in a truly urgent situation, when he or she needs immediate review? This case involved a matter of days – the Board of Elections needs to print ballots, I think starting today, so this had to be resolved quickly. What if you need review in hours? The rules are less than helpful, so I’ll try to lay out in that upcoming essay how to achieve what you need.

Last night’s order isn’t on the court’s website; any of my readers may write to me for a copy.




(Posted September 10, 2018) Have you ever wanted to have input on the Rules of Court? If so, here’s your chance. The Supreme Court has announced that it’s considering some rule changes to address a thorny area of appellate jurisprudence. Here’s a link to the announcement, with the text of the proposed changes.

The purpose of the new provision is to define the trial and appellate courts’ jurisdictional boundaries once a party notes an appeal. It provides for concurrent jurisdiction if a party notes an appeal before the trial court loses control (21 days after final judgment), and some residual jurisdiction for the trial court thereafter. If a trial court vacates a final order after a notice of appeal hits the clerk’s office, that moots the appeal. (Note well that that’s not true if the court merely suspends or modifies the final order.)

Three years ago, I posted an essay on this very topic. That essay pointed out that the caselaw has been inconsistent on this point. Long ago, it took a petition for appeal to divest the trial court of jurisdiction. More recently, without any explanation, the boundary changed to the notice of appeal. This proposed rule change would be very helpful, in my opinion, to end the uncertainty that lingered after that change.

I plan to study the language carefully before sending my comments. You can and should do the same. Don’t be shy; the court wants to hear from you on this proposed change.

One last point: This proposal comes on the heels of the recent rule change that defines finality. These are two excellent means of better publicizing some relatively arcane appellate principles, making it easier for occasional users to navigate the seas of appeals.




(Posted September 6, 2018) The phrase penny-wise and pound-foolish came to mind as I read today’s lone published opinion from the Supreme Court of Virginia. Roberts v. State Bar is a disciplinary appeal that traces its origin to the princely sum of a hundred and forty-three dollars.

We begin with a personal-injury claim. The client hired a lawyer, signing an agreement that provided for a contingent legal fee. The agreement also required the client to deposit into the lawyer’s trust account $150, from which the lawyer could bill for expenses. If the client fired the lawyer before the end of the case, “the law firm will be entitled to a fee quantum merit [sic] for services rendered. Client agrees that the reasonable value of the services rendered to it by the law firm shall not be less than the fees set forth in this Agreement.”

The client became dissatisfied with the lawyer and fired him after eight months, before any resolution of the claim. She demanded a return of her $150, and instructed the lawyer to forward her file to her new counsel. The lawyer complied with the latter request, and billed $6.70 to reimburse the mailing cost. Instead of refunding the remaining $143.30, the lawyer transferred it to his operating account, reasoning that the quantum-meruit value of his services easily exceeded that sum.

The client eventually filed a Bar complaint. During the disciplinary hearing, the client agreed with certain charges on the lawyer’s bill that totaled about $500. The lawyer then turned to the District Committee and insisted that he had done nothing wrong; the agreement gave him the right to transfer money from his trust account to his operating account for unpaid legal fees whenever the client terminated the representation.

The Committee disagreed and found that the lawyer had violated rules relating to safekeeping property, imposing a public reprimand with terms. The lawyer appealed to the Disciplinary Board, but got the same outcome. That generated this trip to Ninth and Franklin.

The justices today unanimously affirm. That may seem incongruous, since everybody knows that the lawyer performed $500 or so in legal services, so he should be able to offset that by the $143, right? Except the client had a plausible argument that that quantum meruit fee should be contingent, since that’s the basic fee arrangement. She had not recovered anything at any time while this disciplinary case made its way through the system.

The Supreme Court finds that that made the ownership of the $143 a disputed matter, so the lawyer had no right to summarily “adjudicate” ownership of the money in his own favor. If the new counsel had secured a recovery for the client, either by collected judgment or settlement, this might be a different matter. But the question whether a termination automatically converts a contingent fee to a fixed fee is still debatable, and the lawyer acted hastily in grabbing this small sum.





(Posted August 31, 2018) Lawyers facing tricky finality issues have in the past had to comb through the annals of Virginia Reports to figure out whether a given order is final and appealable or not. Yesterday, the Supreme Court made our job a bit easier, promulgating significant changes to Rule 1:1. This is major news in the Virginia appellate world, so let’s take a moment to explore the new provisions.

The current rule lays down the 21-day rule: “All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” There’s an exception listed for criminal appeals. The rule concludes with a statement that the date of entry is the date on which the judge physically or electronically signs it. (This means that a judge can’t deprive you of an appeal by entering a final order “nunc pro tunc as of three months ago.”)

That part of the rule is essentially unchanged; it simply becomes subsection (a) of the revised rule. The juicy stuff starts with part (b). There, the court incorporates into its rules the long-standing definition of a final order: “if it disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court’s judgment, order or decree.”

There are plenty of instances where a trial judge has entered what he believes for all the world is a final order, but isn’t. No matter how prominently the order states that it’s final – no matter how much bolding and underlining there is – if it doesn’t meet this definition, then it isn’t final. This rule doesn’t alter the definition, but it makes it harder for judges and lawyers to miss.

New subsection (c) contains a surprise, in that it overrules some fairly long-standing precedent on a particular finality problem. In Gillespie v. Coleman, 98 Va. 276 (1900), the court evaluated an order that sustained a demurrer to the plaintiff’s suit, but didn’t formally dismiss the case. The judges (that’s what they were called back then) of the Supreme Court ruled that “The sustaining or overruling of a demurrer to a declaration is not final. To make it final in the former case, there must be a judgment of dismissal.” 98 Va. at 277. The court has reaffirmed this doctrine since then, notably in Bibber v. McCreary, 194 Va. 394 (1952).

This venerable doctrine isn’t quite dead yet, but as of yesterday, it’s in hospice care. The new Rule 1:1(c) states that henceforth, an order sustaining a demurrer without leave to amend is final even without language dismissing the lawsuit. And when a trial court sustains a demurrer but grants leave to amend, that creates finality if the plaintiff doesn’t amend by the stated deadline. (This leaves one pregnant question: If the plaintiff has, say, 14 days to amend, but doesn’t do so, do appellate deadlines start ticking on the date of the order, or on day 15? By far the safer practice is to regard the earlier date as the trigger, though this rule doesn’t expressly address the question.)

In new subsection (d), pleas in bar and summary-judgment orders get the same treatment as demurrers. Those are final even if the court doesn’t go on to grant judgment for a given party. Note that where a court sustains a plea or grants summary judgment as to one of multiple claims, leaving those other claims to be adjudicated, the order still isn’t appealable until the court concludes the case entirely. The only exception to that is the partial-final-judgment rule, involving claims as to multiple parties. That’s Rule 1:2.

Finally, new subsection (e) states that merely granting a motion to strike is insufficient to dispose of a claim unless the order specifies judgment for a party. In that one, the nonmovant gets at least partial succor.

Yesterday’s order also contains two very minor changes. The court retitles Rule 1:11 to “Motion to Strike the Evidence.” The previous title was “Striking the Evidence.” And the court amends a single clause in Rule 3:20, dealing with summary judgment. The previous wording allowed a trial court to enter judgment in a party’s favor when it found that a party was entitled to relief. The new provision empowers the court to grant the motion, reflecting that summary judgment sometimes is appropriate for less than the full claim.

In all, this set of rule changes isn’t revolutionary, except for the reversal of Gillespie and Bibber. Mostly it just sets out what the law of finality has long held. But a rule is much easier to spot than dusty old precedent from the McKinley era, so this new visibility is a good thing.

One last point: Why are Gillespie and Bibber in hospice and not in the morgue already? Because the new rule has an effective date of November 1. That delay results from a mandate in Code §8.01-3(B), which states that new rules don’t take effect for 60 days.





(Posted June 29, 2018) Now that the dust is starting to settle from all that federal appellate news this week, it’s safe to return to Virginia courts. At the midpoint of 2018, let’s see what the Virginia appellate numbers show.




The Supreme Court of Virginia has handed down 34 published opinions and orders, and 12 unpublished orders. For comparison’s sake, the court decided 79 appeals by opinion and 59 by order in calendar 2017.



The court’s website lists 49 writs that have been granted since the beginning of the year. It is conceivable but not likely that there may be a couple more that aren’t showing up on the page because they’ve already been decided. (The court removes appeals from the writs-granted page after an opinion comes down.) Last year, the court granted 112 writs, including one certified-question case.


Upcoming panels and sessions

The justices will convene three more sets of writ panels in 2018, in addition to the three that are already in the books. In late August, we’ll get the annual road shows, where the court sends two panels out of Richmond to hear arguments. This year’s road shows will convene in Lovingston (Nelson County) and here in Virginia Beach, both on August 30. We’ll also see one in Richmond, probably on August 29. After that, conventional panels (all in the Supreme Court Building in Richmond) will meet October 16 and December 4.

There are two sessions (where lawyers argue merits appeals to the full court) left: the weeks of September 10-14 and October 29-November 2. Four sessions are already in this year’s rearview mirror.


The David/Goliath Index

As I promised you on May 11, I will quarterly announce how the Big Guys and the Little Guys are faring at Ninth and Franklin. (See that essay for a description of the concept.) For the second quarter, David won four appeals in published opinions and Goliath won eight times, for a D-GI of 33/67. While that may sound lopsided, David actually has won almost twice as frequently as he did in 2017 and 2016. For the year, the Index is 32/68.




Thus far the CAV has decided 29 appeals by published opinions and 137 by unpub. (The CAV releases far more of these decisions because by statute, it has to explain the reasons for each ruling. Most appeals in the SCV die with a one-sentence refusal order that virtually no one sees.)


David-Goliath Lite

It’s possible to calculate something of a David-Goliath Index for the Court of Appeals, too, using two case areas: criminal appeals and Workers’ Comp cases. The court has decided 12 Comp appeals and the employee has gone 4-8, resulting in a 33/67 D-GI in that field.

In the other field, Goliath is running away with it. The prosecution has won 89 out of the 97 criminal decisions thus far in 2018; that adds up to an Index of 8/92.