New rules will clarify in which court the ball should go

By Peter Vieth, Virginia Lawyers Weekly – 7/17/2019

The Supreme Court of Virginia has acted to end confusion about what court has jurisdiction after one side notes an appeal.

The creation of Rule 1:1B this month ends speculation about what procedural step triggers transfer of jurisdiction to the appellate court.

The added rule clears up “a troubling ambiguity,” in the words of one appellate lawyer.

The guidance comes in a package of rule changes effective Sept. 1 that affect both trial and appellate practice.

Under Rule 1:1B, the general standard will be that the appellate court acquires jurisdiction immediately upon the filing of a notice of appeal, while the circuit court retains concurrent jurisdiction for certain purposes.

“In my experience, lawyers and judges had imperfect understanding of how the docketing of an appeal affects the respective courts’ powers to act,” wrote L. Steven Emmert, a Virginia Beach appellate specialist.

No opposition emerged when the Supreme Court proposed a similar rule in the fall of 2018, according to a March 28 memo from the Advisory Committee on the Rules of Court.

The rules committee quoted a comment submitted by appellate attorney Norman A. Thomas of Richmond, who welcomed a “uniform procedural point” at which the Supreme Court or the Court of Appeals would obtain appellate jurisdiction.

“The early acquisition of appellate jurisdiction will enable these courts to exercise more effective procedural oversight of appealed cases. In my view, the uniformity and oversight capabilities make good sense,” Thomas wrote.

Early jurisdiction is not always exclusive jurisdiction for the appellate courts. If the notice of appeal arrives at the trial court before the 21-day period for modification of a final order, the circuit court retains plenary, concurrent jurisdiction until the 21 days run, the new rule says.

If the circuit court vacates its final judgment within the 21 days, a notice of appeal is rendered “moot and of no effect.” The appellate court will dismiss the appeal. A new notice of appeal from a later final judgment must be timely filed.

If a notice of appeal is filed after the 21 days have run, the circuit court retains limited concurrent jurisdiction during the pendency of the appeal for certain specified purposes, including bail, appeal bonds, motions to stay and motions to enforce the judgment, including penalties for contempt.

The new rule allows early attacks on an appeal without foreclosing argument on the same issues later. Any time after filing of a notice of appeal, and after the 21 days have run, any party may file a motion in the appellate court to dismiss the appeal. The motion may assert that the appeal has become moot or cannot proceed “for some other sufficient reason.” The appellate court may decide the motion based on the record or remand for additional findings of fact.

Failure to file such a motion, however, does not preclude the party from making such arguments later in its appellate briefs. Thomas said the new language provides needed guidance.

“I can tell you from personal experience that when I contemplate filing a motion to dismiss an appeal, I usually wrestle with … whether to file it or simply assert its grounds on brief. The proposed Rule makes clear the acceptability of either procedural route,” he wrote last year.

New Rule 1:1C adds comparable provisions for interlocutory appeals.

Depositions for trial
In an effort to make last-minute trial preparation a bit less hectic, the Supreme Court is changing the standard pretrial scheduling order to call for exchange of proposed non-party deposition transcripts 30 days before trial, rather than 15 days.

According to a committee of the Boyd-Graves Conference, the 15-day period rarely works.

“There is simply not enough time to exchange page and line designations, objections and counter-designations, and objections to counter-designations, and to obtain and conduct a hearing in the two weeks before trial,” the study panel reported.

“Most of us have developed workarounds,” the committee said.

“The PSO is by its nature a one-size-fits-all order that does not always fit all. Counsel are free to seek leave of court to adjust deadlines and frequently do so in complex litigation,” the panel wrote.

“On balance, our committee thinks doubling the time from 15 to 30 days within which the parties and the court can resolve page and line designations is a significant improvement from the current schedule.”

Both the plenary Boyd-Graves Conference and the Judicial Council agreed without dissent, and the new deadline will take effect in September.

Summary judgment changes
The court’s rule changes reflect the new exception to restrictions on the use of summary judgment. The legislature and the governor approved negotiated language that allows discovery depositions and affidavits to be used for summary judgment in any action where the only parties are business entities and the amount at issue is $50,000 or more.

That language, added earlier this year to Virginia Code § 8.01-420, will soon be part of Rule 3:20.

Early notice of cross-error
Another rule change is intended to clarify the process when an appellee plans to argue its own issues in the Court of Appeals. Difficulties can arise in the process of designating parts of the record.

Amended Rule 5A:25(d) will direct an appellee to include assignments of error in the process of preparing the appendix in an action before the Court of Appeals. A Boyd-Graves committee said it would be helpful for the appellant to know, at an earlier stage, whether the appellee intended to raise additional assignments of error.

“An inadequate appendix to consider an appellee’s additional assignments of error will likely result in a default of those assignments of error, and thereby frustrate the decision-making process by preventing the parties from a full consideration of the errors assigned on appeal,” the committee wrote.

“Providing a mechanism during the appendix-designation process to prompt the disclosure of appellee’s additional assignments of error will assist the Court and all counsel in ensuring an adequate appendix for the appeal,” the panel reported.

The change is that, in appeals of right, after the appellant files assignments of error and a designation of the record, the appellee shall file not just a designation of additional contents for the appendix, but also a statement of any additional assignments of error the appellee wishes to present.

Inmate suggestion heeded
The court took advice from a state prison inmate serving a life sentence to eliminate antiquated language from appellate rules. The change will drop the phrase “with first-class postage prepaid.”

The language could create a procedural stumbling block for inmates, because most of the state correctional facilities use a private vendor for outgoing mail services. The way a prisoner pays for mailing service is inconsistent with the concept of using an envelope “with first-class postage prepaid,” according to the rules committee.

The suggestion for the change came from Anthony Gomez, who is serving a life sentence for felony murder, robbery and abduction. He was convicted as a juvenile in 1997 in Henrico County.