[Posted October 3, 2008] In June, the Supreme Court issued a published order in the case of Dillard’s, Inc. v. Judkins, on interlocutory appeal to consider the trial court’s refusal to compel arbitration. In that order, the court dismissed the appeal, holding that Dillard’s had filed its notice of appeal too early – before the trial court got around to entering the order from which the appeal was taken. ( Rule 5:9 requires the filing of a notice of appeal “within 30 days after the entry” of the judgment appealed from.) You can see my earlier analysis of the case here (it’s in the civil procedure section). Dillard’s filed a petition for rehearing, and was joined by a powerful amicus curiae – the Appellate Defender of the Commonwealth.

Why would a criminal defense lawyer (even an appellate one) care about a civil suit for malicious prosecution? Because, the amicus pointed out, the ruling would create chaos in the handling of criminal appeals. That’s because trial courts often enter sentencing orders well after the date of sentencing, and inmates don’t have the flexibility to stop by the clerk’s office every day to see if the order has come down. So they routinely go ahead and note their appeals after rendition of judgment – in a criminal case, that means when sentence is pronounced.

As I noted in June, the federal system is considerably more appellant-friendly in situations like this. FRAP 4 (a)(2) and (b)(2) provide (in civil and criminal cases, respectively) that a notice of appeal that’s filed after rendition (announcement) of judgment, but before entry (the date the judge signs the order) is treated as timely. There is no such saving provision in the Virginia Rules of Court; hence June’s ruling. But upon reading the petition for rehearing (and more likely, the amicus brief), the court withdrew its published order on June 26. On the same day, the Appellate Rules Advisory Committee (popularly known as the Lemons Commission) issued its final report, and that report includes a recommendation that Virginia adopt the saving provision from FRAP 4.

Today, the court decides the Dillard’s case for the second time, again by order, but this one’s unpublished. This time, the court addresses the merits of the trial court’s ruling and it affirms, based on the language used by Dillard’s in crafting its arbitration document. The plaintiffs, both former Dillard’s employees, had sued for malicious prosecution after the retailer fired them for suspected embezzlement and subsequently (and unsuccessfully) had them prosecuted. The arbitration language only covers employees who have “a dispute resulting from termination of employment.” And since the plaintiffs had not sued for wrongful termination, it was clear to the court that this wasn’t a covered claim.

The case now goes back to the trial court for further proceedings, likely including an eventual trial. The order is noteworthy for what isn’t mentioned – the court does not discuss the jurisdictional argument that was the basis for its earlier order. My sense is that the court will treat current and future notices just as though FRAP 4’s savings clauses were already written into the Virginia rules, until the new revisions make that formal. That means that all those inmate-appellants can plow on with their earnest pursuit of liberty.

Since the order is unpublished, any of my readers who want a copy may contact me for one.

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By the way, if you think I stiffed you on coverage of the Court of Appeals of Virginia this week, you can relax; I still love you. The court handed down no published opinions this week. Check back next Tuesday.