SCV ORDER ILLUSTRATES LATEST DANGER FOR APPELLANTS[Posted August 3, 2012] Remember a couple of years ago, when the Supreme Court of Virginia cracked down on assignments of error that were too vague? Without warning, the court started dismissing appeals because the assignment was too general, such as, “The trial court erroneously granted the defendant’s motion for summary judgment.” I mused then that I had long considered such an assignment perfectly legitimate, since it identified the precise error alleged.
The justices soon backed off that stance, returning to a state of affairs where appellants didn’t have to craft a novella of an assignment. I noted that change, with considerable relief, in an essay on this site a few months after the initial warning. Today, the pendulum swings to the other extreme, as we see an appeal that dies because the assignment was too specific. In Kuehn v. Carlyle Towers Condo Unit Owners Ass’n, the issue appealed related to a trial court’s award of attorney’s fees to the association. Kuehn got a writ to review that award, assigning error based on the contention that the association “failed to identify the basis on which it sought attorney’s fees as required by . . . Rule 3:25.”
For a little legal context, the relevant provision of that rule requires that a party seeking an award of fees “must identify the basis upon which the party relies” in seeking the award, in a written pleading. Every lawyer worth his fee claim knows that under the American rule, generally each party pays his or her own lawyer; the only exceptions are those provided in contracts, in fee-shifting statutes, or in rare instances by common law (for example, in certain fraud claims). In its trial-court pleadings, the association has set out that its fee claim was based on a particular section in its bylaws.
On brief, Kuehn argued that the trial court had erroneously awarded fees based upon a statute instead of on the bylaws. That’s a really good argument, except it didn’t match up with the assignment of error. That assignment only contended that the association hadn’t identified the basis of its fee claim. Beyond question, that basis was set out – chapter and verse. The contention that the fee award was at variance with the fee claim isn’t within the language of the assignment; indeed, it’s excluded by the assignment. The court, having granted a writ and entertained oral argument of the case back in June, dismisses the appeal today as improvidently awarded.
If there’s a lesson to be learned here, it’s the opposite of the clarion call that I issued after the crackdown. It’s possible to be too specific in crafting your assignments. Perhaps the appeal would still be alive if the appellant had been a little less specific, such as, “The trial court erroneously awarded attorney’s fees to the association.”
It is, of course, possible to go too far in the direction of simplicity; I cannot advise you to write, “The trial court erroneously screwed this case up,” for obvious reasons. But when you’re preparing the argument section of your petition for appeal, take a moment to ensure that your argument fits snugly within the contours of your assignments of error. If not, you might consider rewording your assignment to create a slightly bigger tent.