FURTHER THOUGHTS ON FINALITY AND LUMMIS GIN[Posted October 5, 2009] Back on September 18 when the Supreme Court handed down City of Suffolk v. Lummis Gin Co., I mused that the court’s “bonus coverage” of the finality issue was hard to square with the 2005 decision in Williamsburg Peking Corp. v. Kong. I promised some additional analysis after sorting the issues out, and it’s high time I delivered on that promise.
Here’s the incongruity I noticed: In 2005, the court ruled that the plaintiff couldn’t pull the rug out from under a sanctions motion by the expedient of nonsuiting the whole case. Last month, in Lummis Gin, the court held that a trial court’s nonsuit order that specifically reserved a pending motion for an award of attorneys’ fees for taking a second nonsuit, was nevertheless a final order, and the trial court lost jurisdiction to award the fees after 21 days. That threw me for a loop, as the two holdings were hard to square with the finality doctrine.
And then I remembered the procedural posture of Williamsburg Peking, and everything fell into place. In that case, the trial judge had refused to entertain the sanctions motion as soon as the plaintiff used the N-word, reasoning that a nonsuit terminated the entire case, leaving him without any jurisdiction to enter any further orders. The Supreme Court disagreed, saying that the nonsuit only terminated the underlying litigation, and the sanctions motion was ancillary to that.
Here’s the key language from the end of the Williamsburg Peking opinion that reconciles the two holdings: “We conclude, therefore, that where, as here, a motion for sanctions . . . is pending when a plaintiff moves for a first nonsuit, the trial court is empowered to consider the sanctions motion either before the entry of the nonsuit order or within 21 days after the entry of the nonsuit order.” (Emphasis supplied) Ah-HA! The two cases aren’t inconsistent at all; I just failed to recall that final phrase.
The new case still poses a touchy problem relating to finality: What’s the effect of a recitation in an order that disposes of almost all the case, but reserves for separate adjudication a discrete issue? That depends, ultimately, on whether the reserved matter involves something more than the ministerial supervision of the court’s judgment. But with nonsuits, we know full well that “the concept of nonsuit is sufficiently imbued with the attributes of finality to satisfy the requirements of Rule 1:1.” James v. James, 263 Va. 474, 481 (2002), cited in Lummis Gin.
A full discussion of finality would require much more than this essay, but I wanted to set the record straight after my September 18 analysis.