Appeals and Procedure

Question 1

what is a ‘final judgment’?

Answer 1

same as federal practice - it is a judgment that determines the merits of the ENTIER case

Question 2

how do you determine whether a judgment is final?

Answer 2

To determine whether an order is a final judgment, ask “after making the ruling”: Does the trial court have anything left to do on the merits of the case?

If the answer is “yes,” it is not a final judgment but rather an “interlocutory order.”

If the answer is “no,” the judgment is final.

Question 3

if a court order is not a final judgment - what is it called?

Answer 3

an “interlocutory” order - and CANNOT BE APPEALED

Question 4

is there a right to appeal final judgment?

Answer 4

yes! there is a right to appeal final judgmetns

Question 5

is P wants to take a nonsuit and D does not object - is entry of the nonsuit appealable?

Answer 5

nope! it was without prejudice

Question 6

what if P wants to take nonsuit, allowed ot by the court, but the D objects and argues that nonsuit was not proper under the circumstances. If the court enters the nonsuit - is the nonsuit a final judgment?

Answer 6

Yes, the defendant can appeal on whether nonsuit should have been granted. (because it is final on the merits of the whole case)

Question 7

may a CIRCUIT court certify a pretrial interlocutory ruling for appeal to the appropriate appellate court?

Answer 7

Yes! a party must request such an order and the court must certify that:
(1) there is substantial ground for difference of opinion,

(2) there is no clear Virginia appellate precedent,

(3) a determination of the issue will be dispositive of a material aspect of the case, and

(4) the court and parties agree that it is in the parties’ best interest to seek interlocutory review.

Question 8

how much time do the parties have to petition the court of appeals to hear a pretrial interlocutory ruling for appeal?

Answer 8

Within 15 days, the party petitions the court of appeals to hear the matter;

the court of appeals has discretion whether to do so

Question 9

may ‘partial’ final judgments as to one party in a case involving multiple parties be appealable??

Answer 9

Yes! In cases involving multiple parties, a “partial final judgment” as to one may be appealable (even though it is not a final judgment for the whole case)

Question 10

when can party in a case with multiple parties move for an appeal of a ‘partial final judgment’?

Answer 10

the loser on the ruling can appeal if these things are true:
(1) the trial court enters “partial final judgment” on the claim,

(2) the interests involved are separate and distinct from those remaining,

(3) results of appeal on the partial final judgment will not affect the decision in the remaining causes of action, and

(4) results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgment.

Question 11

when can a case be appealed from the GDC to Circuit Court?

Answer 11

Final judgments which involve more than $20 can be appealed from GDC –> CIRCUIT COURT

Question 12

what is the standard of review in circuit courts if they are hearing a case appealed from GDC?

Answer 12

The circuit court hears the case de novo.

Question 13

when must a party move for an appeal from GDC –> CIRCUIT COURT?

Answer 13

The aggrieved party must file NOTICE of appeal in GDC no later than 10 days of entry of judgment.

Seeking a rehearing does not alter this timetable.

Question 14

what else must a party moving to appeal a GDC case to Circuit Court do?

Answer 14

The party must post bond and pay writ tax and costs in GDC no later than 30 days of entry of judgment (10 days in unlawful detainer cases).

Question 15

why about appeals from CIRCUIT COURT –> VA COURT OF APPEALS?

Answer 15

GENERALLY, there is a RIGHT to appeal final judgment of the CC in CIVIL cases involving $500 or more to the VA court of appeals

Question 16

what is the timing of an appeal of right from CC –> court of appeals?

Answer 16

When the appeal is of right, the appellate must file a notice of appeal with the CLERK OF THE CIRCUIT COURT, no later than 30 days after entry of judgment.

The time may be extended in the interest of justice.) The timely filing of this notice perfects the appeal. Post-trial motions do not extend this period.

Question 17

what else must a party do if seeking an appeal as of right from CC –> court of appeals?

Answer 17

Copies must be sent to all opposing counsel

Question 18

what must the notice of appeal contain in an appeal from CC —> Court of appeals?

Answer 18

The notice of appeal must state whether a transcript of the trial or statement of facts, testimony, and other incidents of the case will be filed.

Question 19

where else must the appellant file a copy of the notice of appeal?

Answer 19

The appellant files a copy of the notice of appeal with the court of appeals.

A filing fee is required at that time. If not paid then, the clerk will file the notice, but the fee must be paid within 10 days after that notice.

If the fee is not paid in that time, the appeal is dismissed.

Question 20

what is a ‘record’ on appeal?

Answer 20

A record on appeal consists of the documents and exhibits, instructions given and refused, the trial court orders, etc.

A transcript of the proceedings also may be included IF it is filed with the circuit court within 60 days.

Parties may object to the transcript. The clerk of the trial court prepares the record on appeal and sends it to the court of appeals.

in turn, the court of appeals sends a notice of filing of the record to all parties.

Question 21

what does the filing of the record in the court of appeals trigger?

Answer 21

The filing of the record triggers various further steps.

1) The appellant must file its OPENING BRIEF within 40 days of that filing. T

2) The appellee’s REPLY BRIEF is due 30 days after the opening brief.

3) The appellant may file a REPLY 14 days thereafter.

Question 22

what must the appellant’s opening brief contain?

Answer 22

the opening brief must contain:
(1) a statement of the nature of the case and proceedings at the circuit court and

(2) assignments of error with references to the record where the error was preserved.

The appellee’s brief can make additional assignments of error.

Question 23

are oral arguments allowed in appeals of right?

Answer 23

In appeals of right, oral argument will be permitted UNLESS the court of appeals unanimously agrees that oral argument is UNNECESSARY, either because (a) the appeal is without merit or (b) because clear precedent exists and the appellant has not argued that it should be reversed.

Question 24

what if an appeal is not as of right - but is discretionary?

Answer 24

A petition for appeal is used when the appeal is discretionary.

The time periods for filing vary depending on the type of case

Question 25

what about appeals from the Court of appeals —> the VA Supreme Court?

Answer 25

A person aggrieved by a final decision of the court of appeals MAY petition the Virginia Supreme Court for review.

Most appeals will be by petition, which the supreme court can grant or deny in its discretion.

There are some appeals that go from the circuit court directly to the supreme court, such as judgments of the State Corporation Commission. The supreme court has jurisdiction to issue writs of mandamus and prohibition.

Question 26

can some cases be appealable directly from circuit court to the VA Supreme Court?

Answer 26

There are some appeals that go from the circuit court directly to the supreme court, such as judgments of the State Corporation Commission.

Question 27

does the VA Supreme Court have to hear appeals by petition from the court of appeals?

Answer 27

Most appeals will be by petition, which the supreme court can grant or deny in its discretion.