3Q DAVID-GOLIATH INDEX
(Posted September 30, 2022) Where has the time gone? We’re already at the end of the third quarter of the 2022 calendar, so it’s time to check the latest results from Ninth and Franklin. This quarter I counted two wins for our Davids and four for Goliath. That brings the annual totals to five wins for the little guy and 16 for the big guy, producing a year-to-date D-GI of 24/76.
In my mind, the most interesting aspect of this report isn’t the ratio but the raw numbers. I just checked my 3Q 2021 report, and back then, David had prevailed 15 times against 30 wins for Goliath. That was 45 decisions – including published opinions and unpubs decided on the merits – last year at this time, against only 21 this year. In 2020, we had received 39 “qualifying” rulings by this point.
Don’t expect a burst of activity as the year starts the gun lap. We have only nine appeals currently in the pipeline – two still pending from the June session and seven argued earlier this month. Some of those won’t qualify for David-Goliath analysis – no identifiable little-guy-vs.-big-guy dynamic—so we likely won’t see 30 such rulings in the entire year.
That matters because of the importance of sample size. Stats geeks will assure you that until you reach a meaningful number of entries, you’re more likely to get a skewed result, like the baseball player who goes 3-for-4 on Opening Day and then brags that he’s batting .750 for the season. That would be a record, but it won’t hold up over the course of a full season.
Even so, this year’s results are in line with what we’ve seen in the past several court terms: The modern court is far more likely to rule in favor of the Goliaths who appear before it. That means far more likely than 50-50, and far more likely than the current justices’ judicial ancestors of less than a generation ago. (From 2005-09, the D-GI was 49-51, almost dead even.)
“BOND. APPELLATE BOND.”
(Posted September 26, 2022) We unsurprisingly got no new opinions from Ninth and Franklin last week. (It’s unsurprising because there are only two undecided appeals left from those argued before the recent September session.) That gives us an opportunity to explore an essential but often misunderstood aspect of appellate practice: bonds.
The Code of Virginia provides for two distinct bonds in appeals, each set out in Code §8.01-676.1. The first, known simply as an appeal bond, is essential in almost every appeal. Its purpose is to secure payment of the appellee’s costs and damages in the event the appellate court affirms the judgment or dismisses the appeal. Those costs and damages are usually nominal, and the required bond is correspondingly small – just $500.
The other bond is for suspension of the judgment pending the appeal. It’s also known as a supersedeas bond, for those of you who like Latin; that word translates to “you must desist.” This halts any execution on the lower-court judgment until after the appeal. In contrast to the appeal bond, this can be quite large; see below.
The appeal bond is mandatory – the appellate court can dismiss the appeal if the appellant eschews filing it – and the appellant must file it no later than 30 days after final judgment in the circuit court. You file it with the clerk of the circuit court, usually at the same time as the notice of appeal.
This may come as a surprise, but the suspending bond is voluntary, and your appeal can proceed normally without one. No statute or rule sets a filing deadline. That being said, an appellant who genuinely fears a snap execution – a property seizure or a bank garnishment – should have it in place no later than 21 days after final trial-court judgment. That’s because a judgment creditor can obtain a writ of fieri facias after the 21st day. Code §8.01-466.
Effect of filing
For appeal bonds, this is simple: By filing it, an appellant avoids having his or her appeal dunked. This is a no-brainer.
For suspending bonds, the mere filing of the bond with the clerk – no judicial action necessary – automatically halts all efforts by the judgment creditor to enforce the lower-court judgment. That suspension continues through the course of the appeal, so the appellant doesn’t have to keep posting new bonds at each appellate stage. This bond, too, goes to the trial-court clerk.
As noted above, the appeal bond is $500. Governmental entities such as the Commonwealth don’t have to post it, because the appellate courts won’t award costs or damages against Aunt Virginia. Code §17.1-629.
The size of the suspending bond depends on the size of the judgment. If judgment is for a defendant in, say, a suit for money damages, then there’s no bond involved; defendants who escape tort or contract liability generally don’t have anything to execute. But when a plaintiff receives judgment, the suspending bond has to be large enough to ensure payment of the full judgment in the amount of an affirmance or dismissal.
By statute, the amount of the suspending bond must include one year’s interest, and is capped at $25 million, even if the judgment is for a higher amount. Interest is almost always at the statutory judgment rate, currently 6%. Code §6.2-302. If either party wants to modify the amount of the bond, the procedure is to file a motion, first in the trial court, for that relief. The circuit court has the power to fix the amount of the bond, subject to the requirements of the statute.
The Rules of Court include forms for both types of bonds. Form 1 is the appeal bond and Form 4 is for suspension. You can file both in one document; that’s Form 2. For all bonds, Form 8 sets out how the bond has to be executed.
Both types of bonds require some type of surety. For the $500 appeal bond, the simplest thing to do is use a cash bond. In that case, you prepare, execute, and file the bond form along with a check for $500 payable to “Clerk of Court.” Remember, this goes to the circuit court clerk. For cash bonds, I recommend that you add this language at the bottom of the form: “No surety required per Code §8.01-676.1(S).”
You can use a cash bond for suspension, too, but that can get expensive in large appeals. In many instances, the appellant will choose to employ a professional surety, usually an insurance company. That company will prepare and file the bond, charging the appellant a premium.
The paragraph immediately above this one may lead you to conclude that an appellant should never post a cash bond; just pay the premium and let the surety company take the risk of loss. Ah, but they’re too smart for that; most companies will require that the appellant put up something of equal or greater value, so the company won’t lose money on an affirmance.
To find a bonding company, you’ll probably want to consult an independent insurance agent who handles things like payment-and-performance bonds for businesses. If you go to a bail bondsman who’s hanging outside the City Jail, be prepared for a breathtaking premium for a bond like this. This company provides excellent bond service nationwide, and they’re not bail bondsmen.
Disposition of the bonds
If the appeal is successful, then the clerk of the trial court will return the appeal bond to the appellant. This requires a court order, which is usually by consent. If the appeal is unsuccessful and the appellee obtains an award of statutory damages or of appellate costs, then the bond exists as security for those awards. Upon application, the clerk will pay the bond unto the appellee. If the award is less than $500, the appellee gets his or her award and the remainder goes back to the appellant.
For suspending bonds, the same result occurs with a reversal – the money goes back to the appellant. If the bond is by surety company, the bond is canceled and the appellant is out only the premium paid. If the appellate court affirms, the appellee, as a judgment creditor, can obtain payment of the bond directly. Note that it’s far easier to collect on a bond than it is to execute against a judgment debtor; you just submit a court order and get paid.
What did I omit?
If you have appellate-bond questions that I haven’t anticipated, drop me a line and I’ll answer them. I’ll also update this essay with that answer, so others will get the information, too.
ANALYSIS OF SEPTEMBER 15, 2022 SUPREME COURT OPINION
(Posted September 15, 2022) Today is a noteworthy day for appellate lawyers. It’s the 165th anniversary of the birth of William Howard Taft, 27th President of the United States and 10th Chief Justice of the United States. Many people with a passing knowledge of our nation’s early Twentieth Century recall that he’s the only person to have held both offices, being appointed to the Court eight years after leaving the Oval Office.
But this mention is for another reason: Taft is also the only former Solicitor General to be elected president. I read a book recently that asserted that Abraham Lincoln is the only president ever to have argued a case in the Supreme Court. Taft, had he lived long enough to have read that book, would likely have cleared his throat and pointed to his 15-3 record in SCOTUS appeals. (Abe lost his one and only case there.)
I consider myself a reasonably serious student of Virginia sanctions jurisprudence, and am always happy to see new material on this topic. T0day’s opinion in AV Automotive, LLC v. Gebreyessus brings that material and a dissent.
Gebreyessus worked for a car dealership, one affiliated with a manufacturer that had an incentive program for its staff, paying them bonuses. In a complaint filed by the dealer against the employee, it asserted that she had cooked the books, including customer reviews, to artificially inflate her own bonuses. The complaint asserted that the manufacturer had penalized the dealer $700,000 for these misstatements.
But that last part wasn’t true; the manufacturer soon revealed that it hadn’t imposed any penalty, and wouldn’t be doing so. (Ulp!) The employee sought sanctions for this false pleading. The circuit court agreed to impose sanctions for this and for other litigation conduct. It gave the employee an award of over $200,000 – all of her lawyers’ fees for the entire case.
A divided court today affirms in part and reverses in part. Justice McCullough writes for a five-justice majority, holding that the circuit court acted within its discretion in imposing sanctions for most of the conduct cited by the employee. But it holds that at least some of the other conduct wasn’t sanctionable. It goes on to hold that awarding all of the employee’s legal fees for the entire case was excessive, so the court remands the case for a recalculation of the amount of the sanction.
Justice Chafin pens a dissent, which Justice Kelsey joins. She points to an unusual circumstance – the employee’s legal fees were being paid by a fellow defendant in the trial court, who was not involved in this appeal. The dissent accordingly concludes that the employee didn’t “incur” any fees so it would be improper to award any to the victorious employee.
Here’s the relevant language, so you can see the nature of the dispute; I’m cleaning this up to avoid a lot of distracting ellipses: “the court shall impose an appropriate sanction, which may include an order to pay the other party the amount of reasonable expenses incurred because of the filing, including reasonable attorney fees.”
The $200,000 question is what incurred means in this context. As it appears, it’s an implied passive voice, long derided by serious writers as indicating sloppy draftsmanship; it means, “the amount of reasonable expenses that are incurred,” etc. The passive voice is the use of a past participle, preceded by a to be or to get verb.
Slight digression: One classic use of the passive voice came on May 1, 1973, when Richard Nixon’s press secretary, Ron Ziegler had to backpedal from his previous unmistakable dismissive comments to Washington Post reporters Bob Woodward and Carl Bernstein. Ziegler had denied any wrongdoing by White House staffers in the Watergate affair and described the reporters’ stories to the contrary as “shabby journalism.”
Then, after Bob Haldeman and John Erlichman resigned on April 30, 1973, Ziegler had to face the press again. On that day, he couldn’t bring himself to come right out and say, “I was wrong,” a line familiar to virtually every husband. Instead, he turned to the passive voice, which conceals the identity of the actor: “Mistakes were made in terms of comments.”
Back to today’s decision: The dissent insists that the word incurred in this context must mean, “directly incurred by the other party.” Because the record contains nothing to indicate that the employee would have to reimburse her benefactor for the payment of fees, the dissent would reverse the fee award in its entirety. The majority is satisfied that someone incurred fees. The two sides accuse each other of inserting language into the statute.
A couple of quick notes about today’s ruling: I’m pleased to note that two of my pals, Monica Monday and George Peterson, argued the appeal back in April. This was at a time when the court was down to five active justices – the legislature had yet to elevate the court’s two newest Robes – so Senior Justices Russell and Millette sat in, both voting with the majority.
Because the parties argued it in April, this was the second-oldest undecided case on the court’s docket. The only older case, Baughman v. Commonwealth, also arrives today, though this one is by unpublished order. It’s a sexually violent predator appeal that also results in a remand, and also generates a spirited dissent. At the very end of the Baughman order, dissenting Justice Kelsey writes that, despite his disagreement with the majority’s rulings, the opinion should be published.
To that, I say, “Amen, brother.” The percentage of unpubs of the court’s merits rulings has risen in recent years, to the point that perhaps 60% of all merits cases end up in Virginia Reports. While I can see my way to consigning a few merits cases to the unpubs pile, I believe that the court should publish more, not less.
Finally, the Baughman decision comes 34 weeks after the oral argument. I haven’t confirmed this yet, but that might be the longest delay between argument and decision in the 17+ years that I’ve been covering the court. As you might expect, opinions with dissents often take longer, because the two authors are exchanging drafts and then polishing their own.