Supreme Court of Virginia Addresses Timeliness of Notices of Appeal and other Pleadings and Reaffirms Cross-Appeal Rule

June 17, 2016 | by: George A. Somerville | Leave a Comment

In Alexandria Redevelopment & Housing Authority v. Walker, 290 Va. 150, 772 S.E.2d 297 (2015), the circuit court clerk incorrectly file-stamped the appellant’s notice of appeal one day after the deadline.  The appellee moved to dismiss the appeal but did not file a cross-appeal or assign cross-error in her brief in opposition. The first question for decision was whether the appellee’s motion to dismiss properly presented the issue for decision.  (It did.)  The second question was whether a circuit court order “directing the clerk to correct the docket to reflect that the notice of appeal was in fact filed” a … Continue reading

Don’t be that guy!

June 7, 2016 | by: George A. Somerville | Leave a Comment

Virtually every known book or article on good litigation practices warns against personally attacking judges, opposing counsel, parties, witnesses, or anyone else.  (If that is an exaggeration at all, it is a small one.)  Judges despise ad hominem arguments.  In the words of former Pennsylvania Supreme Court Justice J. Michael Eakin, “there is little to be gained by castigating the other side – if it is apparent they deserve it, you do not need to do so; if it is not apparent, you will be seen as whining and bitter.”  And that, to say the least, is no way to … Continue reading

Has the Supreme Court of Virginia announced a standard for temporary injunctions?

April 8, 2016 | by: George A. Somerville | Leave a Comment

Conventional wisdom has it that the Supreme Court of Virginia has not and probably never will articulate the standard or standards that trial courts should apply in deciding whether to grant a temporary (or preliminary) injunction. The reasons are that the Court has the authority to review temporary injunction orders only under Va. Code § 8.01-626, which authorizes single-Justice review on an expedited schedule (although such applications customarily are decided by three-Justice panels), but only decisions of the full Court are published in the Virginia Reports. See, e.g., Emmert, Virginia’s Standard for Granting Preliminary Injunctions (Why Isn’t There One?), http://www.virginia-appeals.com/essay.aspx?id=220. Lacking … Continue reading

Porter v. Zook – The Case of the Ambiguous Finality

| by: George A. Somerville | Leave a Comment

The finality rule is among the most fundamental rules of appellate procedure, as every appellate lawyer knows (or certainly should know). With few exceptions, appellate courts have jurisdiction only to review final judgments or orders of trial courts and other tribunals. See, e.g., 28 U.S.C. §§ 1291, 1292; Va. Code §§ 8.01-670, 8.01-670.1. In Porter v. Zook, 803 F.3d 694 (2015), the Fourth Circuit was forced to apply the finality rule of § 1291 and dismiss an appeal from what appeared to the District Court to be a final judgment in a habeas corpus appeal. Porter, the habeas petitioner, raised “a multitude of … Continue reading