Appellate Review Flashcards
Final Judgment Rule
There is a right to appeal final judgments, which are defined as in federal practice. If a court order is not a final judgment, it is an “interlocutory” order.
Appeal of Nonsuit
When defendant does not object: the entry of the nonsuit is not appealable, it was entered without prejudice.
When defendant does object: and the court does enter a nonsuit, this is a final judgment and the defndant can appeal on whether nonsuit should have been granted.
Certification of Interlocutory Ruling
The circuit court may certify a pretrial interlocutory ruling for appeal to the appropriate appellate court. 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 appeallate 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.
Appeal of Partial Final Judgment
In cases involving multiple parties, a “partial final judgment” as to one may be appealable.
If P sues D1 and D2 and the court enters judgment regarding the claim by P against D2, this is not a final judgment because the other claim is still pending.
D2 can still 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 decision in the remaining causes of action
4. results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgment.
Appeal from GDC to CC
Final judgments which involve more than $20 are appealable as of right to the CC. The CC hears the case de novo.
Appeal from GDC to CC: Timing
The aggrieved party must file a notice of appeal in GDC no later than 10 days of entry of judgment.
Appeal from GDC to CC: Bond Requirement
The party must post bond and pay writ tax and costs in GDC no later than 30 days of entry of judgment.
Appeal from CC to Court of Appeals
Generally, there is a right to appeal final judgments of the circuit court in civil cases involving $500 or more to the Virginia Court of Appeals.
Appeal from CC to Court of Appeals: Timing
When the appeal is of right, the appellant must file a notice of appeal with the clerk of the circuit court no later than 30 days after entry of judgment.
Copies must be sent to all opposing counsel. The timely filing of this notice perfects the appeal.
Appeal from CC to Court of Appeals: Content
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.
Appeal from CC to Court of Appeals: Filing a Copy with Court of Appeals
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 at that time, the appeal is dismissed.
Appeal from CC to Court of Appeals: Record on Appeal
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.
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.
Appeal from CC to Court of Appeals: Briefs
The filing of the record triggers various further steps.
1. The appellant must file its opening brief within 40 days of that filing.
2. The appellee’s reply brief is due 30 days after the opening brief
3. The appellant may file a reply 14 days thereafter.
Appeal from CC to Court of Appeals: The Opening Brief
The opening brief must contain:
1) a statement of the nature of the case and proceedings at the circuit court
2) assignments of error with references to the record where the error was preserved
The appellee’s brief can make additional assignments of error
Oral Arguments and Disposition of Appeal
In appeals of right, oral argument will be permitted unless the court of appeals unanimously agrees that oral argument is unnecessary, either because the appeal is without merit or because a clear precedent exists and the appellant has not argued that it should be reversed.
