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Late appeal notice precludes review

Virginia Lawyers Weekly//June 5, 2023

Late appeal notice precludes review

Virginia Lawyers Weekly//June 5, 2023

Where a bank prevailed in an unlawful detainer action against appellant in the circuit court, the order granting the bank summary judgment was the final order in the case.

As a result, when the court later awarded the bank the appeal bond appellant posted, appellant’s “notice of appeal submitted after the [appeal bond] ruling was not timely filed with respect to the summary judgment rulings.”


The Bank of New York Mellon (BONY) sent Haring a notice quit regarding property BONY bought at auction. BONY prevailed in an unlawful detainer action against Haring in the general district court after she remained on the property.

Haring appealed and posted an appeal bond. “In circuit court, BONY moved for summary judgment, arguing, among other things, that Haring’s claim of a break in the chain of title failed as a matter of law.

“BONY also argued that Haring did not have standing to challenge the assignments of the deed of trust because she was not a party to the assignments.”

The circuit court granted BONY summary judgment on March 7, 2022. The court continued the case to March 25 “‘for review/status of appeal bond.’  …

“On March 11, 2022, Haring filed a motion to reconsider and vacate the order granting summary judgment. This motion was denied by written order entered March 15, 2022. On April 8, 2022, Haring filed a written motion for the return of her appeal bond from general district court. BONY filed a written opposition to that motion.

“On April 25, 2022, the circuit court issued a written order denying Haring’s motion to have her bond returned to her. The order states that the motion is denied, that the appeal bond ‘shall be paid over’ to BONY, and directs the clerk of court to disburse the appeal bond to BONY’s counsel.”

Haring appealed.


“Haring was required to file her appeal to this Court within 30 days of the entry of final judgment by the circuit court. Rule 5A:6(a); Code § 8.01-675.3. Thus, the timeliness of Haring’s notice of appeal depends on which order was the final order from the circuit court – the March 7 order granting summary judgment, or the April 25 order disbursing the appeal bond.

“If the March 7 order was the final order, then Haring’s appeal of the summary judgment award was not timely filed. …

“[T]he unlawful detainer action, which awarded possession of the home to BONY, was the claim at issue. The March 7 order granted summary judgment in favor of BONY, awarded BONY possession of the home, and ordered the clerk of court to record that order in the land deeds. Thus, the March 7 order disposed of the substantive claims in this proceeding.

“‘[W]hen a trial court enters an order, or decree, in which a judgment is rendered for a party, unless that order expressly provides that the court retains jurisdiction to reconsider the judgment or to address other matters still pending in the action before it, the order renders a final judgment and the twenty-one day time period prescribed by Rule 1:1 begins to run.’ …

“‘The filing of ancillary motions for the recovery of costs or the filing of other post-trial motions does not suddenly transform an otherwise final order into a nonfinal order.’ …

“[W]hile the language of the March 7 order indicated that the case was being ‘continued’ to settle the matter of the appeal bond, the order did not include language explicitly retaining the circuit court’s jurisdiction. …

“Virginia case law is clear that ‘even if an order granting a final judgment on the merits of a case contains express language indicating that the trial court intends to rule’ at a later time on a still-pending motion, this language ‘is insufficient to negate the finality of an order rendering a final judgment on the merits of a case.’ …

“Accordingly, for Haring to appeal the final order on the merits, she needed to file her notice of appeal within 30 days of the March 7, 2022 order. She failed to do so. We conclude that Haring’s assignments of error regarding the court’s substantive rulings are barred as having not been timely appealed, and we cannot reach the merits of her arguments.”


“The circuit court’s April 25 order was issued more than 21 days after the March 7 final order, thus raising questions about its validity under Rule 1:1. However, we find that the April 25 order, which dealt exclusively with the disbursement of the appeal bond, was a purely ministerial execution of the circuit court’s prior March 7 judgment. …

“[A]ncillary motions must be ruled upon within the 21-day period of Rule 1:1, or the trial court will lose jurisdiction to make such a ruling. …

“Motions requesting the ministerial execution of a final order, however, are administrative in nature. Such motions may stem from the final order itself, such as requesting a ruling on a written statement of facts or requesting modification of the terms of the security for an appeal.

“These type of administrative actions are not subject to the 21-day requirement of Rule 1:1. … Therefore, we conclude that the order granting the appeal bond to BONY was valid under Rule 1:1(b).”


“Because the March 7 order disposed of the entire action between the parties, and because the request for the appeal bond was not part of either a claim or counterclaim, we find that the March 7 order was the final order in the case and that Haring’s first three assignments of error are therefore dismissed.

“We additionally find no error in the circuit court’s award of the appeal bond to BONY.”

Affirmed in part and dismissed in part.

Haring v. The Bank of New York Mellon, Record No. 0778-22-4, May 23, 2023. CAV (unpublished opinion) (Friedman). From the Circuit Court of Loudoun County (Plowman Jr.). Henry W. McLaughlin for appellant. Ronald J. Guillot, Jr., Edward Farnsworth Jr. for appellee. VLW 023-7-184, 12 pp.

VLW 023-7-184

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