Supreme Court expands its rules on finality

By Peter Vieth, Virginia Lawyers Weekly – 9/10/2018

The Supreme Court of Virginia has added language to Rule 1:1 dealing with finality of judgments, orders and decrees that could make it easier for lawyers to know when a matter is ripe for appeal.

The rewritten rule was announced Aug. 30 and will take effect Nov. 1.

The rule now has five subparts, the first being the existing Rule 1:1 which lays out the “21-day rule” – all final judgments remain under the control of the trial court and subject to change for 21 days after entry and no longer. An exception applies for criminal appeals.

The new language starts with subsection (b), setting out the definition of a final order as established by case law:

“Unless otherwise provided by rule or statute, a judgment, order or decree is final if it disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court’s judgment, order or decree.”

Subsection (c) addresses rulings on demurrers. The new language provides that an order sustaining a demurrer, or doing so “with prejudice” or “without leave to amend,” is a final order even if it does not expressly dismiss the claims or cause of action.

An order sustaining a demurrer with leave to amend is considered final if the plaintiff does not meet the deadline for filing an amended pleading.

The new rule on demurrers overrules long-standing case law, according to Virginia Beach appellate attorney L. Steven Emmert. A 1900 case required a judgment of dismissal to make the sustaining of a demurrer final.

Similar language in subsection (d) addresses rulings on pleas in bar and summary judgment motions:

“An order sustaining a plea in bar or sustaining a plea in bar with prejudice or without leave to amend is sufficient to dispose of a claim(s) or cause(s) of action subject to the plea in bar, as is an order granting a motion for summary judgment, even if the order does not expressly dismiss the claim(s) or cause(s) of action at issue or enter judgment for the moving party.

Motions to strike
Motions to strike are a different matter, based on new language in two different rules.

First, in subsection (e) of Rule 1:1, the court said:

“In a civil case, an order which merely grants a motion to strike, without expressly entering summary judgment or partial summary judgment or dismissing the claim(s) or cause(s) of action at issue, is insufficient to dispose of the claim(s) or cause(s) of action at issue.”

Moreover, language on motions to strike has been removed from Rule 3:20, dealing with summary judgment motions. The old rule provided for summary judgment “upon sustaining a motion to strike the evidence.” That phrase is gone from the new Rule 3:20.

The court also changed the language regarding the court’s action on a summary judgment motion: the old rule said “the court shall enter judgment in that party’s favor.” The new rule simply says, “the court shall grant the motion.”

The court’s order also makes changes in the titles to Rules 1:11 (Motions to Strike the Evidence) and 3:20 (Motion for Summary Judgment).

Emmert said the rule changes are not revolutionary, except for the reversal of the old demurrer standard.

“Mostly it just sets out what the law of finality has long held. But a rule is much easier to spot than dusty old precedent from the McKinley era, so this new visibility is a good thing,” Emmert said in an Aug. 31 blog post.