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Still out of court

The Virginia Court of Appeals responded today to a Supreme Court of Virginia opinion in April that took the intermediate appellate court to task for dismissing cases under Rule 5A:20(e).

That provision requires that the opening brief include “[t]he principles of law, the argument, and the authorities relating to each question presented.” In several cases, the court of appeals had treated that language as jurisdictional and dismissed the appeals because the briefs did not include principles of law or cite authority.

In Jay v. Commonwealth, the court said the language is not jurisdictional and directed the court of appeal to consider whether the failure to comply with the rule is “insignificiant.”

If the failure is significant, the court of appeals may treat a  question as waived and dispense with the appeal of that issue, Justice Cynthia D. Kinser wrote for the Supreme Court.

In an opinion by Chief Judge Walter S. Felton Jr., a court of appeals panel did just that in Parks v. Parks. The wife cited three errors in an equitable distribution order but presented no legal authority in support of any of them.

In this case, the failure to comply with the rule is significant, the questions presented are waived and “the judgment of the trial court is affirmed without opinion as to whether error exists in the record,” Felton wrote.

By Alan Cooper

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