Appellate Review Flashcards
When does the final judgment rule apply?
Applies, generally, as in federal practice. Also, the interlocutory appeals for injunctions and other equitable orders is the same as in federal practice.
Suppose P wants to take a nonsuit, to which D does not object. Is entry of the nonsuit appealable?
No, it is dismissed without prejudice.
Suppose P wants to take a nonsuit. The court allowed P to take a nonsuit, but D objects and argues that nonsuit was not proper under the circumstances. The court enters a nonsuit. Is that an appealable final judgment?
Yes. The D can appeal on whther the nonsuit should have been granted.
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 find:
(1) There is substantial ground for difference of opinion,
(2) There is no clear Virginia appellate precedent,
(3) 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.
NOTE: The party would file a petition with the VA Supreme Court within 10 days of certification by the Circuit Court.
Are “partial final judgments” appealable?
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).
P sues D for breach of contract. D files a counterclaim against P on an unrelated matter. The court enters summary judgment on the counterclaim (leaving the claim by P against D pending). The losing party on the counterclaim can appeal if:
(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, and
(4) Results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgment.
Do parties have a right to appeal from GDC to Circuit Court? What types of cases? When must the notice of appeal be filed?
Yes and both P and D have a right to appeal if they are aggrieved by a final judgment of more than $50.
File notice of appeal in GDC no later than 10 days of entry of judgment.
What is the standard of review for cases seen in Circuit Court?
Circuit Court hears case de novo.
Where must the party seeking appeal from a GDC judgment file its notice of appeal and when must the notice be filed? Is the party required to do anything else? If the party is seeking a rehearing, is the timetable altered?
– File notice of appeal in GDC no later than 10 days of entry of judgment.
– 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).
– Seeking rehearing does not alter this timetable.
Is there a right to appeal from Circuit Court to the Virginia Court of Appeals? What types of cases? To appeal, when must notice be filed?
There is a right to appeal from final judgments and rulings granting or denying injunctions in domestic relations cases (divorce, adoption, custody, support) and in some administrative matters. But the Court of Appeals plays no appreciable role in other civil cases.
File notice of appeal in circuit court within 30 days after entry of appealable decision
Is there a right to appeal from Circuit Court to the Virginia Supreme Court? What types of cases?
Supreme Court has DISCRETIONARY review– it is not required to hear appeal in general civil case. Review is allowed in general civil cases if they involve at least $500 on appeal.
When appealing from Circuit Court to Virginia Supreme Court, how can a party preserve the issues?
To preserve the issues, the party must object with “reasonable certainty at the time of the ruling.” (e.g. pleading that the “judgment is contrary to the law” is not sufficent)
Failure to object to jury instructions before the jury is charged waives the objection.
When appealing from Circuit Court to the Virginia Supreme Court, is there a duty to disclose controlling or noncontrolling law?
Counsel is under an obligation to bring to the court’s attention adverse controlling authority. There is no duty to disclose noncontrolling law.
When appealing from Circuit Court to the Virginia Supreme Court, what are the steps taken and timing of each step?
(a) File notice of appeal with the clerk of the Circuit Court no later than 30 days after the appealable judgment or decree.
(b) The successful plaintiff can still execute on the judgment even though defendant has filed a notice of appeal. To avoid that possibility, defendant/appellant must post a suspending (or supersedeas) bond in amount to be set by the trial court. (If the plaintiff is appealing, he will be required to post an appeal bond after the Supreme Court grants the appeal).
(c) The clerk of the Circuit Court prepares the record for transmission to the Supreme Court. It consists of pleadings, jury instructions given and refused, exhibits, the orders entered by the trial judge, etc.
(d) The transcript of the trial is only part of the record if it is filed with the clerk of the Circuit Court no later than 60 days of the entry of judgment or decree. It is incumbent on the appealing party to do this. Notify other counsel within 10 days after filing.
– In lieu of a transcript, appellant can prepare a written statement of facts, testimony and other incidents of the case. It must be filed with the clerk of the Circuit Court within 55 days of the entry of judgment or decree AND mailed to other counsel noting that it will be presented to the trial judge no earlier than 15 and no later than 20 days after filing.
– Any party can object to the transcript or to the written statement because it is erroneous or incomplete. The court corrects errors in either and signs it and it becomes a part of the record.
(e) File seven copies of the petition for appeal with clerk of Supreme Court no later than 3 monts after the appealable judgment or decree.
Can any party object to the transcript or to the written statement because it is erroneous or incomplete? What does the court do?
Yes. Any party can object to the transcript or to the written statement because it is erroneous or incomplete. The court corrects errors in either and signs it and it becomes a part of the record.
