CAV ORDER ILLUSTRATES AoE RISKS
[Posted July 27, 2016] The Court of Appeals of Virginia decides most of its appeals by published or (far more commonly) unpublished opinions. Both categories make their way onto the court’s website, and you can click on a link and read the decision. Some appeals, however, are decided by order. There’s no public presence for those rulings.
That doesn’t mean that they don’t have detailed explanations. By statute, the CAV is required to “state in writing the reasons” for its decision in each adjudicated appeal. By all accounts, these orders look just like opinions, except they’re per curiam, with no identified author. Unless you’re one of the litigants, you’ll probably never hear about them.
Yesterday, a pal sent me a copy of one of these shadow rulings, and it made for very interesting reading. It offers a sad lesson about the importance of crafting assignments of error carefully.
I’m not going to identify the case by its name, for two reasons. One is to protect the lawyer involved from embarrassment. The other is that it wouldn’t do you any good, because you can’t look it up online anyway. I’m going to refer to the appeal as Mom v. Dad.
This is an appeal of a circuit court’s order imposing sanctions against Mom and holding her lawyer in contempt, all in the course of a child-support-enforcement proceeding. Dad moved a JDR court to modify his support obligation. The court refused, and Dad appealed that decision to circuit. Just before trial in circuit, Mom filed a plea in bar to that appeal.
The circuit-court judge denied the plea and decided it wasn’t filed in good faith. It sanctioned Mom $900, representing Dad’s attorney’s fees. Mom’s lawyer wasn’t happy with that, and orally responded in a way that the judge must have felt was snarky. That got him a contempt conviction and a $50 fine.
The lawyer prepared and filed a notice of appeal, naming himself and Mom as appellants. But when he filed the petition for appeal, he listed Mom as the only appellant. That, you will readily appreciate, creates a major problem. But it gets worse, as the opinion points out:
In her brief, mother raises two assignments of error. First, she contends that “[t]he trial court’s award of sanctions against Mother’s counsel was an abuse of discretion, and was without basis in law or in fact.” Second, she argues that “[t]he trial court’s finding of contempt against Mother’s counsel was an abuse of discretion, [and] was without basis in law or in fact.”
Look at that first assignment carefully. It complains about an “award of sanctions against [Mom’s] counsel.” But the lawyer didn’t get sanctioned; Mom did. The Court of Appeals accordingly finds that it cannot adjudicate the assignment of error, because the judge never made the ruling that it describes.
There’s more. The second assignment does accurately describe the trial court’s contempt ruling. But this assignment, too, dies an ignoble death, for two reasons. First, the only appellee is Dad. But contempt convictions are criminal in nature; the adverse party is the Commonwealth. Note to practitioners: even in private-party litigation like this, if you’re appealing an internal finding of criminal contempt, you must name the Commonwealth as an appellee. Mom’s lawyer didn’t do that, so we’re missing a necessary party to the appeal.
The second fatal defect in Assignment 2 is the one you’ve already identified based on my description above: the lawyer didn’t file a brief in his own name. The court finds that if the lawyer wants to appeal the sanction award against himself, he has to name himself as an additional appellant, and argue his own case.
These rulings are, to my eye, completely correct; the CAV panel (Judges Beales, Russell, and AtLee) got the analysis and the result right on all points. I am constrained to point out, however, that the Supreme Court recently reversed a sanction award where the appellant blew off one of these requirements.
I’ve written extensively about Environment Specialist v. Wells Fargo from earlier this year, where the justices reversed a sanction against a lawyer. But that lawyer forgot to name himself as an appellee. By all rights, he should have been out of court the same way Mom’s lawyer is here. But the justices evidently found that previous sanction to be so inappropriate, they decided to overlook the defect and reverse anyway.
My advice is simple: If you’re trying to uncork a sanction order or contempt finding against yourself, adhere to the CAV’s ruling and name yourself as an appellant. You can’t be kicked out of court for doing it that way.