SCV RULING ILLUSTRATES THE HAZARDS OF APPELLATE PRACTICE
If there is a more terrifying lawyer story than this one, I don’t want to hear it.
Last Thursday, July 7, the Supreme Court of Virginia dismissed a petition for appeal filed by the owners of the Wintergreen ski resort. Wintergreen had suffered an $8.3 million judgment last year, in a case involving a 17-year-old skier who was badly injured in a collision with a snow grooming vehicle on a slope. It filed a timely petition for appeal, and awaited a date for oral argument. Last week, the court dismissed the appeal, without ever hearing oral argument.
The petition was denied for a procedural default in the appellate process.
It is daunting enough to have to explain to your client that a jury awarded a judgment of $8.3 million against the client. While exceedingly rare, that kind of thing happens from time to time. In this case, the far more common event, a procedural dismissal, must have proved far more difficult to explain.
The problem here arose in the filing of the transcript of the trial. Rule 5:11 states that the transcript is a part of the record when it is filed within sixty days of the date of entry of judgment. Wintergreen’ lawyers filed a transcript within that time. But by mistake, they only filed the transcript of the post-trial hearing, not the transcript of the trial itself. In the past, the court has routinely (and, many unsuccessful appellants might add, relentlessly) dismissed appeals where the transcript, or its black-sheep cousin, a written statement of proceedings, is not timely filed. This is because the court rigidly adheres to the premise that it is the responsibility of the appellant to ensure that the record is sufficient to enable the court to determine the merits of the appeal.
This appeal was, unfortunately for Wintergreen, heavily dependent upon trial testimony. Wintergreen raised four assignments of error, each of which relied upon trial testimony; there were no purely legal issues involving only the pleadings. Since the court didn’t have the ability to look at the trial testimony, it had no way to reliably resolve Wintergreen’s legal assertions of error. Accordingly, in keeping with its long-standing precedent, the court dismissed the appeal.
Wintergreen’s options at this point are almost nil. It can petition the court to rehear the matter, but it cannot now file the transcript; while the time for filing the transcript can be extended upon motion, such a motion can only be made before the original sixty days has expired. Once that passes, the issue is closed. And if the transcript is foreclosed, then further appellate proceedings will almost certainly be pointless.
There are a few other details about this appeal that warrant mention here. First, the failure to file the appeal was not something raised by the appellee; the court itself discovered the absence of the trial transcript and directed the parties to file letter briefs on the subject. Second, this is a case in which Wintergreen had been very confident of success, as evinced by its strategies at trial and in the Supreme Court. As initially reported elsewhere, the highest settlement offer made before the trial was $25,000. And Wintergreen’s appellate arguments had focused entirely on getting the judgment wholly reversed; it did not assign error to the amount of the verdict, and did not argue to the Supreme Court that the verdict was excessive. Of course, that aspect of the case is now moot. Third, in case you think the justices take some sort of sadistic pleasure in dunking appeals for procedural flaws, think again. They genuinely dislike having to do things like this. But their oath to follow the law, to apply the rules evenly in all cases, occasionally constrains them to take actions that may seem harsh, if viewed out of context.
Every lawyer, whether a trial lawyer, an appellate lawyer, a transactional lawyer, or any other variety, makes mistakes. The fortunate among us have made our mistakes in less deadly circumstances, or in situations in which the mistake was remediable. Wintergreen’s lawyers were not exactly fresh off the legal turnip truck; the resort was represented by one of the finest and most respected law firms in the state. If they can make a mistake like this, then you can, too; this emphasizes that, in any context, but especially in appellate practice, Thou Shalt Not Dabble. If a highly experienced law firm can lose a case in this way, how likely is it that someone who only occasionally handles appeals will make a similar mistake? The advice is simple, but stark in this context. Trial lawyers are strongly advised to get plenty of training in appellate advocacy, or else turn your case over, after judgment, to an appellate specialist. You’ve seen the stakes.
This situation, unfortunately for Wintergreen, appears to be irremediable. I have reviewed the petition for appeal and the brief in opposition, and can say that the appeal would have presented significant appellate issues, although I can’t know whether the court would have granted a writ. This sudden termination of the appeal does more than just illustrate the need for careful attention to detail throughout the appellate process; it is a reminder that there, but for the grace of God, plead I.