Appeals

Question 1

How do you sue an incompetent?

Answer 1

If he has a substantial estate, there is a formal proceeding appointing fiduciary to act for the mentally incompetent person.

Then, you sue the fiduciary that was appointed (i.e., committee - french, guardian, conservator)

Question 2

On appeal from the GDC, what does the Circuit Court do?

Answer 2

Hears the case de novo

Question 3

What is a pretrial interlocutroy ruling?

How do you et it?

Answer 3

Where a party requests the court to certify to the appellate court regarding a matter in which:

• No substantial ground for difference of opinion
• No clear Virginia appellate precedent
• Determination will be dispositive of material aspect
• In best interest of parties to seek interlocutory review

After getting this certification, file a petition w/ Supreme Court within 10 days

Question 4

What is a partial final judgment and when is it appealable?

Answer 4

When the court enters judgment regarding one party but not the other (i.e., summary judgment in favor of D1 but not D2)

The loser on the motion (D2) may appeal if:

• Trial court enters partial final judgment
• Interests involved are separate and distinct from those remaining
• Results of appeal will not effect remaining decision
• Results of remaining decision will not affect disposition of final partial judgment

Question 5

How do you appeal from the GDC to the Circuit Court?

Answer 5

1. File written notice of appeal
   
   • With the clerk of GDC
   • Within 10 days of judgment
2. Post bond and pay writ tax in GDC
   
   • Within 30 days of judgment
   • Within 10 days of judgment (if unlawful detainer)

Seeking rehearing does not alter this timetable.

Question 6

When can a party seek a rehearing in GDC?

Answer 6

No later than 30 days after judgment, and court must rule no later than 45 days after judgment

Question 7

When can you appeal a Circuit Court decision to the Court of Appeals?

Answer 7

Generally only in domestic relations cases and in some administrative matters

Otherwise, seek appeal by Supreme Court, which is always discretionary

Question 8

If D appeals from GDC to the Circuit Court, what can P do in response?

Can P do this if P appeals from GDC to the Circuit Court?

Answer 8

Move to amend his claim to over $25,000 (because the GDC would not have had jurisdiction over this amount before)

It is not clear whether P could do this if he appeals

Question 9

When can you appeal from the GDC to Circuit Court?

Answer 9

If the amount involved is more than $50, there is an absolute right to appeal

Question 10

If the court enters nonsuit, is it appealable if:

• D does not object
• D objects

Answer 10

No objection

• No appeal (it is without prejudice)

Objection

• Appeal (as to whether nonsuit should have been granted)

Question 11

The final judgement rule is..

Answer 11

generally the same as in federal court. Also, the interlocutory appeals for injunctions and other equitable orders is the same as in federal practice.

Question 12

Apeals from CC to VA S. Ct. is Allowed in general civil cases if…

Answer 12

they involve at least $500 on appeal.

Question 13

Appeals from CC to S. Ct. are…

Answer 13

discretionary. Supreme Court is not required to hear an appeal in a general civil case.

Question 14

When appealing from CC to S. Ct., you Must make objection in trial court with…

Answer 14

“reasonable certainty at the time of the ruling”

Question 15

When appealing from CC to S. Ct., Failure to object to jury instructions before the jury is charged…

Answer 15

waives the objection.

Question 16

Counsel is under an obligation to bring to the court’s attention…

Answer 16

adverse controlling authority.

Question 18

What are the steps taken and timing for an appeal?

Answer 18

1. File not. of appeal with clerk of the Circuit Court no later than 30 days after the appealable judgment or decree.
   
   • Does the pendency of a post-judgment motion doesn’t extend time for appeal unless the CC suspended the judgement within 21 days.
2. Mail or deliver a copy of the notice of appeal to counsel for other parties
   1. Notice- state whether you’re filing transcript or written summary of the trial
   2. If it’s a transcript, certify that it has been order by the court reporter
3. Successful P can execute on the judgement, unless D posts bond set by Ct (P must post bond if he is appealing)
4. Clerk transmits record of CC trial to S. Ct.
5. Appealing party files transcript w/i 60 days of entry of judgment
   
   • Must notify other counsel w/i 10 days after filing
   • Can also prepare written stmt w/i 55 days and mailed with in 15-20 days w/ notice that it will be given to court
   • Any party can object to the transcript or to the written statement because it is
     erroneous or incomplete.
6. File 7 copies of the petition for appeal with clerk of S. Ct.

Question 19

What are the contents of the petition for appeal to the S. Ct.?

Answer 19

Contents: parties, assignments of error with particularity, certificate re whether oral hearing on petition desired. If so, only counsel for appellant is heard (usually before subpanel of justices).

Question 20

How may an appellee respond in an appeal?

Answer 20

Appellee may file brief in opposition to petition and state grounds of cross- appeal. Court need not await it, though, to rule in clear cases.

Question 21

How may the S. Ct. rule on the petition?

Answer 21

1. Deny
   
   • appellant may req. rehearing w/i 14 days of notice
2. Grant
   
   • then sends certificate of appeal to all parties.
   • Parties file briefs and have oral arguments on the merits, unless waived.
   • If the petition is granted, appellant must file appeal bond within 15 days of the certificate.
   • If appellant doesn’t post the right bond money, court may dismiss appeal.