High court continues rule clarification project

By Peter Vieth, Virginia Lawyers Weekly – 9/17/2018

The Supreme Court of Virginia has advanced another set of rule changes that address gray areas of the appeal process.

This time, the court has posted the rules for comment with an Oct. 25 deadline.

The proposed revisions address the transfer of jurisdiction during an appeal of a final circuit court judgment and expressly provide authority for motions to dismiss in the appellate courts.

The Sept. 10 announcement of the proposed rule additions follows the Aug. 30 order that promulgated new language on the finality of judgments in Rule 1:1, with an effective date of Nov. 1.

Who’s in driver’s seat?

The newly proposed revisions add new rules 1:1B and 1:1C and add language to existing Rules 5:9(a) and 5A:6(a).

Rule 1:1B would resolve a conundrum over the authority of a trial court after a notice of appeal has been filed. Confusion in the case law led to inconsistent rulings on whether the trial judge was divested of jurisdiction at the filing of a notice of appeal or not until the filing of a petition for appeal.

At the outset, the proposed new rule declares that, immediately on filing of a notice of appeal, the appellate court acquires jurisdiction of the circuit court case. The circuit court, however, still retains concurrent jurisdiction for certain purposes.

If a notice of appeal is filed before the end of the 21-day period set by Rule 1:1, the circuit judge keeps “plenary, concurrent jurisdiction” over the case until the end of that period.

That provision answers a persistent question for lawyers and judges, said appellate lawyer Steven L. Emmert of Virginia Beach.

“Some trial judges believe once you file a notice of appeal, he can’t do anything,” Emmert said.

Another question is answered in the next paragraph of the proposed rule. If the trial judge vacates the final judgment within the 21-day period, a previous notice of appeal “shall be moot and of no effect.” Following the vacatur order, a new notice of appeal challenging any later final judgment must be timely filed.

Similar language would be added to both Rules 5:9(a) and 5A:6(a).

If a notice of appeal is filed after the expiration of the 21-day period, the circuit court retains limited concurrent jurisdiction solely for specified purposes, including:

  • Addressing motions to grant post-conviction bail
  • Addressing motions to stay the judgment pending appeal
  • In civil cases, addressing motions as to the amount or form of an appeal or suspending bond
  • Revoking suspended sentences and pronouncing judgment for suspension or probation violations

The proposed language is “definitely an improvement, because there is some confusion about jurisdiction once a notice of appeal is filed,” said Frank K. Friedman, a Roanoke appellate lawyer. “It was a problem, so it is good to fix it.”

Motion to dismiss

The court proposes to expressly authorize motions to dismiss in appellate courts. That’s a first, said appellate specialist Monica T. Monday, also of Roanoke.

Paragraph 4 of proposed new Rule 1:1B states that a motion to dismiss an appeal may be filed in the appellate court any time after a notice of appeal has been filed and after the expiration of the 21-day period.

“The motion may assert that the appeal has become moot or cannot proceed for some other sufficient reason,” the rule would say.

Failure to raise such an issue in a motion to dismiss would not, however, prevent any party from raising the issue in appellate briefs.

The appellate court can decide a motion to dismiss on the existing record or temporarily remand the case to the circuit court for additional fact finding.

The guidance will be welcome, Monday said.

“I think at the Supreme Court there was some concern whether the court could even act on some appeals before a petition for appeal was filed,” Monday said. “This part of the rule could be very helpful to disposing of an appeal that ought not to go forward in the first place, saving parties money and time,” she said.

Interlocutory appeals

New Rule 1:1C addresses interlocutory appeals pursuant to Code § 8.01-626. When a petition for review is filed, the appellate court gets exclusive jurisdiction over the appealable intoerlcutory order, while the circuit court keeps jurisdiction over any part of the case that has not been appealed, unless either court stays the lower court proceedings.

In any other appeal of an interlocutory order, the circuit court retains concurrent jurisdiction over the case unless either court stays all or part of the circuit court proceedings.

Guidance welcomed

Filling gaps in the law and putting the authority right in the rule book will be a big help, practitioners said.

“These new rules just seem to create one spot where practitioners and the bench can find guidance on what happens after a notice of appeal is filed,” Monday said.

The changes “go a long way toward demystifying appellate procedure,” Emmert said.

The proposed rule changes are posted on the Supreme Court’s website. Comments must be received by Oct. 25 and directed to scvclerk @ vacourts.gov with the subject line “comment on Rules 1:1B, 1:1C, 5:9 and 5A:6.”

Comments also can be mailed to:

Patricia L. Harrington, Clerk

Supreme Court of Virginia

100 North Ninth Street, 5th Floor

Richmond, VA  23219