ANALYSIS OF SEPTEMBER 23, 2008 CAV OPINION
[Posted September 23, 2008] There is but one published opinion today from the Court of Appeals, and its a short one; just a page and a half. This one is an extraordinarily foreseeable waiver ruling.
For years, the Court of Appeals enforced the requirements of Rule 5A:20 (e) (which requires that the opening brief of the appellee must include principles of law, the argument, and the authorities relating to each question presented) by dismissing, on jurisdictional grounds, any appeal in which the appellant included no legal authority in his brief. Basically, if the only thing you said was, This is what happened below, and its obviously wrong, then the court determined that it had no jurisdiction, and the trap door opened to swallow yet another hapless appellant.
Earlier this year, the Supreme Court ruled, in Jay v. Commonwealth, 275 Va. 510, that no jurisdictional bar existed to the CAVs consideration of such an argument. The court reasoned that it was the equivalent of failing to include a table of citations not good, but hardly something that deprived the appellate court of jurisdiction.
Now, lest any sloppy appellants get too excited, the Supreme Court stated in Jay that the CAV could, if the failure is significant, simply treat the issue as waived, thereby leading to the same result. Today, we get the CAVs first published application of that broad hint, in the equitable distribution case of Parks v. Parks . There, the wife asserted three separate errors by the trial court in the ED calculus. But her lawyer inexplicably failed to include any legal authority in support of any of them. Accordingly, the court today affirms (note: not dismisses), holding that the failure to include authorities was indeed significant.
Both appellate courts view with frustration a brief that fails to cite case or statute in support of the position urged. The Supreme Court certainly stands together with the CAV in its desire to rid its docket of such meritless briefs; if the lawyer cant even bother to find some authority, why is he filing an appeal in the first place? So the Parks holding isn’t surprising; while this default certainly isnt jurisdictional, it just as certainly deserves the appellate death penalty.
Normally, a waiver ruling like this would never make it into the published annals of the Court of Appeals. Todays opinion is published so appellees can, in an appropriate case, cite a published opinion in an effort to euthanize a poorly crafted appeal.