Virginia Lawyers Weekly

Oops!

The Supreme Court of Virginia is never so direct – or colloquial.

But that appears to be what it is saying in withdrawing a published order holding that a notice of appeal is ineffective if it is filed after a judge rules from the bench but before a written order is entered.

That order came down June 6, and on Thursday it issued another order withdrawing it and returning the case to the docket.

The withdrawal is in apparent response to a petition for rehearing from the party that had its appeal dismissed as having been improvidently granted and to an amicus brief filed by the appellate defender for the Indigent Defense Commission.

The original issue before the court was whether two former employees of a Dillard’s department store in Hampton had to submit their malicious prosecution claim to arbitration.

The company fired them because it suspected them of embezzlement and then filed criminal charges, which were dismissed in general district court.

The employees had signed an agreement to arbitrate all employment-related claims when they were hired but contended that the malicious prosecution allegation was one step removed from their employment. The judge agreed with the employees, and the Supreme Court granted interlocutory review of the arbitration issue.

However, L. Steven Emmert, the appellate counsel for the employees, challenged the jurisdiction of the court. The trial judge ruled from the bench on March 20, 2007, but did not enter a written order until April 10. Dillard’s filed its notice of appeal on April 4.

Emmert cited Rule 5:9(a), which says no appeal will be allowed unless it is filed “within 30 days after the entry of final judgment or other appealable order or decree.” The plain language of the rule does not permit filing a notice of appeal before a final order is entered, he contended.

He cited appeals that had been dismissed for even minor variations from court rules. In the published order in Dillard’s Inc. v. Judkins (VLW 008-6-078), the Supreme Court said, “A notice of appeal filed outside that thirty-day period, whether before it begins to run or after it has expired, does not comply with the rule and is invalid.”

No mention was made in Emmert’s brief or in the Supreme Court order of a Virginia Court of Appeals case, Saunders v. Commonwealth, 12 Va. App. 154 (1991), or Lackey v. Lackey, 222 Va. 506 (1981).

Not that either case shines as a beacon of Virginia case law. The Supreme Court case is a two-page per curiam opinion. It rejected in a footnote a motion to dismiss because the notice of appeal was received prior to the entry of the final order.

Saunders is also a published order rather than a full opinion. It cites Lackey as authority for the proposition that a premature notice of appeal becomes effective when the final order is entered by the court.

The court of appeals panel said the purpose of the rule is to give appellees ample notice of the fact of an appeal so they can protect their interests. An early filing generally does not prejudice appellees, and the court would entertain a motion to dismiss if it did, the panel said.

The court added, “Because the issue addressed herein occurs with sufficient regularity that members of the bar may benefit from the directives herein, the court is directed to publish this order.”

Impact on criminal bar

Criminal defense attorneys, and especially public defenders, took due note, as the Appellate Defender, S. Jane Chittom, recited in an amicus brief supporting Dillard’s petition for rehearing.

“Relying on Saunders and Lackey, the Indigent Defense Commission has made it their policy for public defenders to file the notice of appeal from the circuit court to the Court of Appeals within thirty days of the final sentencing hearing regardless of when the final order is signed by the circuit court judge,” she wrote.

Betty Layne DesPortes, a criminal defense attorney in Richmond, agreed that the commission’s policy is prudent.

Defense attorneys often have little way of knowing when an order is actually entered, she said. The judge’s clerk or secretary can take days or weeks to prepare it, and once signed, it can sit on a court clerk’s desk for a few days before it is placed in the case file.

Moreover, some courts do not routinely notify counsel that a final order has been entered, she said. “It is the variability [among courts] that is the problem,” Des-Portes said.

Emmert said the jurisdictional nature of the timing of a notice of appeal could be addressed in two ways: language similar to the Federal Rule of Appellate Procedure 4(a)(2) that applies the remedy suggested in Saunders, or a return to the pre-1972 version of Rule 5:9, which required that that the notice of appeal be filed within 60 days of final judgment.

The draft report of an appellate rules advisory committee chaired by Justice Donald W. Lemons recommends the FRAP approach.
In his petition for rehearing, Dillard’s attorney, Thomas M. Lucas of Norfolk, suggested the plaintiffs had waived the procedural issue by failing to raise it until after the petition for appeal had been granted.

Although Rule 5:9 is jurisdictional, only subject matter jurisdiction cannot be waived, Lucas contended.

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