Supreme Court of Virginia Addresses Timeliness of Notices of Appeal and other Pleadings and Reaffirms Cross-Appeal Rule
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 day earlier was effective. (It was.)
The first issue was governed by the established rule that “[n]o cross-appeal is necessary when an appellee seeks to support a judgment on alternative legal grounds, including those expressly rejected by the trial court and those raised for the first time on appeal…. Cross-appeals are necessary only when an appellee seeks to modify or otherwise change a favorable judgment ‘with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.’” As stated in a footnote, “[t]his conclusion follows from the axiom that a ‘prevailing party seeks to enforce not a [trial] court’s reasoning, but the court’s judgment.’”
The context in Walker is somewhat unusual, but the rule should be applied generally. As long as the appellee’s arguments on appeal do not seek in any way to alter the judgment entered below, she is seeking affirmance of the judgment; the “right for the wrong reason” (or “right for alternative reasons”) rule applies; and there is no need to assign cross-error.
Do not overlook the Walker Court’s observation that an appellee may advocate affirmance of a judgment for reasons “raised for the first time on appeal.” That is a holding of Perry v. Commonwealth, 280 Va. 572, 578‑80, 701 S.E.2d 431, 435‑36 (2010), which represented a dramatic rewriting of the “right for the wrong reason” rule in Virginia. Under Perry, the contemporaneous objection doctrine, which governs preservation of trial court errors for appeal, simply does not apply to appellees, as long as the factual record is sufficient to allow adjudication of the new argument on appeal. (That is possibly a slight overstatement; but if there are any exceptions to that rule, they have not yet been announced.)
The Court explained the factual record requirement in Rives v. Commonwealth, 284 Va. 1, 2‑3, 726 S.E.2d 248, 250 (2012): “This ‘right result for the wrong reason’ doctrine is inapplicable where the ‘right reason’ cannot be fully supported by the evidence in the record, where the development of additional facts would be necessary to support it, or where the appellant was not on notice in the trial court that he might be required to present evidence to rebut it.” The Court has not yet explained, however, how it would determine whether adjudication of a new argument on appeal would require the development of additional facts, in a case where an appellant challenges the sufficiency of the record for that purpose. And as shown by a dissenting opinion in Rives, by then-Chief Justice Kinser and current Chief Justice Lemons, the Justices are not all on the same page on that question. Cf. Banks v. Commonwealth, 280 Va. 612, 617, 701 S.E.2d 437, 440 (2010) (decided the same day as Perry) (“The record supports an alternative ground when it reflects that all evidence necessary to that ground was before the circuit court. And if that evidence was conflicting, then the record must show how the circuit court resolved the dispute – for example, it must demonstrate how contradicting testimony was weighed or credited.”).
The second question in Walker was whether to give effect to the trial court’s order directing the clerk to revise the docket to indicate that the notice of appeal was filed on time. The appellee argued that the order “was erroneous as a matter of law because a written document is filed only when the clerk of court stamps it as filed.” The Court recognized “that a circuit court clerk’s ‘filed’ stamp is usually conclusive evidence of the filing date” but held that it “does not render the timing of the filing incontrovertible.” (Emphasis added.) It held instead that “a pleading is filed when it is physically delivered to the clerk of court.” The correction order “merely confirm[ed] the factual timeliness” of the notice of appeal, and therefore the motion to dismiss was denied.
The Court explained – without detailing the appellant’s “uncontroverted evidence of timely filing” – that Federal Express delivered the notice of appeal to the land records department of the clerk’s office. The notice apparently did not find its way to the appropriate desk until the next day, when it was stamped “filed.”
In the Virginia courts, at least, subsequent deadlines are not affected by the early filing of a notice of appeal, and the lawyer who allows ample time for misdirection in the mail (or Federal Express) is sure to sleep better at night. An early notice of appeal may lead to an earlier deadline for an opening brief in a federal court, but that is no reason not to file the notice at least a day before the deadline. The same is true of other filings – briefs on appeal, for example. The press of business may preclude early filings in some cases, to be sure; but again, early filings make for restful sleep. They also may give the early filer a slight tactical advantage over an adversary who has ordered his own schedule in anticipation of the typical last-minute filing.