REPORT ON TWO IMPORTANT APPELLATE ITEMS

(Posted March 18, 2024) There’s significant appellate news out of Richmond, coming from opposite sides of Ninth Street.

A tweak to the preservation-rescue statute

I learned today that the General Assembly has passed, and the Governor has signed, a bill that expands slightly the wording of the appellant’s old friend, Code §8.01-384. For years now, that statute has eliminated the need for a party to keep renewing arguments on each adverse ruling again and again until final judgment. The general premise is that once a judge rules against you, you aren’t deemed to have waived the argument unless you expressly do so.

Supreme Court caselaw has generally embraced this lifeline against a ghastly Rule 5:25 death. There are commonsense exceptions: A litigant can still waive an argument where he “has abandoned the objection or has demonstrated by his conduct the intent to abandon that objection.” That’s from Kellermann v. McDonough in 2009. But generally, the court has applied the saving provision where the appellant has received an unmistakable adverse ruling and hasn’t backed off.

Three years ago, the Supreme Court issued a remarkable opinion that shouldered aside the statute. In Lucas v. Riverhill Poultry, 300 Va. 78 (2021), a judge ruled in limine that the plaintiff could not use a proposed expert witness at the eventual trial. The circuit court added, in language that I found superfluous, that its order was “without prejudice to plaintiff, by counsel, moving the Court to reconsider its ruling based on developments at trial.”

How is that superfluous? Because rulings made days or weeks before trial – come to think of it, even rulings made during trial – are interlocutory, meaning the court can always revisit them until 21 days after final judgment. A ruling like that is by definition without prejudice to a party’s right to ask the court to rehear the matter while it retains jurisdiction.

At the Lucas trial, the plaintiff didn’t renew the objection, knowing that he had the protection of §8.01-384 in his back pocket. He never expressly withdrew or waived the earlier argument, so the statute should allow him to appeal the exclusion of the expert.

Except the Supreme Court didn’t see it that way. It described the original ruling as “preliminary” and held that the plaintiff “deprived the circuit court of an opportunity to make a final ruling on the admissibility ….” That resulted in a Rule 5:25 waiver.

I recall being astounded at this opinion, and my pals in the appellate guild were, too. We foresaw the need, after Lucas, for each trial litigant to reassert at trial each issue on which the court had ruled before trial, on pain of a waiver ruling that seemed to fly in the face of the statute.

But now the legislative cavalry has ridden to the rescue. The new law, HB901, adds a provision that a litigant need not “move for reconsideration in order to preserve his right to appeal a ruling, order, or action of the court, even if such ruling, order, or action is without prejudice to a motion to reconsider.” The specific language makes it unmistakable that the bill was expressly designed to reverse the Lucas ruling.

My one caution is that there’s no emergency clause in the bill, so the new terms in the statute won’t take effect until July 1, 2024.

New proposed rule on temporary injunctions

As I noted in an essay here back in 2013, Virginia has never adhered to a specific set of rules, or even guidelines, for a trial court to consider in deciding whether to award temporary injunctive relief. We have an unhelpfully vague statute that requires the chancellor to be “satisfied of the plaintiff’s equity,” but nothing like the specificity of the Winter v. NRDC doctrine in federal courts. That’s left lawyers and circuit court judges trying their best to divine a Virginia standard.

If you’re one of those frustrated litigants or jurists, be of good cheer: The Robes have heard your cries of anguish. The Supreme Court of Virginia has posted to its website a proposed new Rule of Court that would specify the factors that go into temporary-injunction analysis. In reviewing it, you’ll see a lot of highly familiar language, especially if you’ve litigated injunctions in federal courts.

The court has set a deadline of May 1, 2024 to receive public comment on the draft rule. This is what you’ve been waiting for; take them up on the offer to participate in the decisionmaking process by submitting your comments. Here, I’ll even make it easy for you: The e-address for comments is scvclerk[AT]vacourts.gov, with the @ symbol in place of the bracketed characters. You’ll need to insert, “Draft Rule 3:26” in the subject line.