2.8 Prerequisites to Appeal

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

2.8 PREREQUISITES TO APPEAL

2.801 Appellate Jurisdiction.

A. Virginia Court of Appeals. The Court of Appeals exercises appellate jurisdiction over traffic and criminal convictions in circuit court by the petition for appeal process, except where a sentence of death is imposed. If the death penalty is imposed, there is a direct appeal of right to the Supreme Court of Virginia. ¹⁶² Rule 5:22 contains special provisions for appeals in these cases. ¹⁶³

Many appeals to the Court of Appeals are appeals of right, that is, the party appealing need not file a petition for appeal and have that granted, but rather the party can appeal without first seeking permission. The categories of matters that may be appealed of right to the Court of Appeals are as follows:

1. A final decision of a circuit court on appeal from a decision of an administrative agency and any final decision of the Workers' Compensation Commission of Virginia; ¹⁶⁴

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2.	A case involving affirmance or annulment of a marriage, divorce, custody, spousal or child support, or the control or disposition of a juvenile, other domestic relations matters, and adoptions; 165
3.	A final decision of a circuit court reviewing a decision of a state administrative agency, including the Department of Employment Dispute Resolution, a state agency responsible for administering the state employee grievance procedure; 166
4.	Any interlocutory decree or order entered in any of the above types of cases that grants, dissolves, or denies an injunction or adjudicates the principles of a cause; 167 and
5.	A judgment of a circuit court for civil contempt. A writ of error lies from a judgment of criminal contempt in a circuit court. Similar provisions relate to a judgment of civil or criminal contempt in a general district court, as applicable. 168

In addition, the Court of Appeals has jurisdiction to hear appeals by petition in cases resulting in a final conviction in a circuit court on a traffic infraction or crime, including criminal contempt, unless the court imposes a sentence of death. ¹⁶⁹ Exclusive appellate jurisdiction in death penalty cases rests with the Supreme Court. ¹⁷⁰ The Court of Appeals also has original jurisdiction over petitions for writs of actual innocence based on nonbiological evidence ¹⁷¹ and for pre- and post-trial motions regarding bail in criminal cases. ¹⁷²

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The Supreme Court of Virginia has held that the Court of Appeals does not have jurisdiction over appeals from local boards of zoning appeals. ¹⁷³ Also, the Court of Appeals has no jurisdiction over appeals from "independent actions" challenging public contract awards under Va. Code § 2.2-4364. ¹⁷⁴ The Court of Appeals does have jurisdiction, however, over appeals from decisions of the Virginia Department of Transportation involving contractual disputes. ¹⁷⁵

In determining what constitutes an administrative agency for purposes of deciding whether the Court of Appeals has jurisdiction under Va. Code § 17.1-405, the Supreme Court has borrowed from the definition of "agency" found in the Virginia Administrative Process Act. ¹⁷⁶ But the Supreme Court has not bound itself to that definition. Rather, it has sought legislative intent using a "common sense interpretation of statutory language." ¹⁷⁷

Although the Court of Appeals has original habeas corpus jurisdiction, it has no appellate authority over habeas corpus decisions of a circuit court. Those appeals lie directly to the Supreme Court of Virginia by a petition for appeal. ¹⁷⁸

Regarding its original habeas jurisdiction, the Court of Appeals has held that under Va. Code § 8.01-654(B)(1), only the Virginia Supreme Court and "'the circuit court which entered the original judgment or order resulting in the detention may issue a writ [of habeas corpus] for one held under criminal process." ¹⁷⁹ In a later decision, however, another panel of the Court of Appeals held that it had original habeas jurisdiction to entertain those cases, but "[a]bsent exceptional circumstances," the court would not

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consider the petition "when an adequate [habeas] remedy may be had in the circuit courts under Va. Code § 8.01-654." ¹⁸⁰

The Court of Appeals does not have jurisdiction over commitment orders. ¹⁸¹

Under Rule 5A:38, the Court of Appeals can grant expedited review of an injunction granted in a case within the Court of Appeals' jurisdiction. The authority of a Court of Appeals' judge to review an injunction within 15 days of issuance also exists in Va. Code § 8.01-626. In a recent published order, the Court of Appeals dismissed the appeal of an injunction because no bond had been posted by the party who obtained the injunction, and, thus, under Va. Code § 8.01-631 the temporary injunction did not take effect, and the appellant was therefore not "aggrieved." ¹⁸²

The scope of review of the Court of Appeals in a civil case is limited to errors of law. It cannot weigh the evidence or substitute its factual judgment for that of the trial court. ¹⁸³

B. Supreme Court of Virginia. The Supreme Court has jurisdiction to hear appeals in civil cases from a circuit court, to hear appeals from decisions of the State Corporation Commission, and to hear appeals from all criminal judgments imposing the death penalty. ¹⁸⁴ An appeal from a death sentence and from decisions of the State Corporation Commission constitute appeals of right. ¹⁸⁵ The remaining appeals are by petition. ¹⁸⁶ The Supreme Court also entertains petitions for appeal of interlocutory orders and decrees (for example, injunctions) in all cases other than those noted above as within the Court of Appeals' jurisdiction. ¹⁸⁷ The court may dismiss

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an appeal or impose other penalties for noncompliance with the rules. ¹⁸⁸ But, unless the defect is incurable, a show cause may be issued prescribing a time in which to correct the problem. ¹⁸⁹

The jurisdiction of the Supreme Court to hear appeals from the State Corporation Commission precludes a circuit court from reviewing the actions of the Commission. ¹⁹⁰ The Supreme Court does not review a State Corporation Commission final order as a matter de novo. The Commission's findings are presumed to be just, reasonable, and correct. ¹⁹¹

The Supreme Court also has appellate jurisdiction over decisions of the Court of Appeals. ¹⁹² Certain judgments of the Court of Appeals, however, are for all practical purposes final and without appeal to the Virginia Supreme Court. ¹⁹³

C. Transfer of Jurisdiction from Court of Appeals to Supreme Court. In any case in which an appeal has been taken to the Court of Appeals, the Supreme Court in its discretion may certify the case for review by the Supreme Court. That certification must be made before the case has been decided by the Court of Appeals and has the effect of transferring jurisdiction to the Supreme Court. ¹⁹⁴

A transfer of jurisdiction is not permitted unless the Supreme Court determines that (i) the case is of such imperative public importance as to justify the deviation from normal appellate practice, or (ii) the docket or status of work of the Court of Appeals is such that the sound or expeditious administration of justice requires the transfer. ¹⁹⁵

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When jurisdiction has been transferred, the case proceeds as if a petition for appeal had been granted by the Supreme Court on the date of the certificate of transfer. ¹⁹⁶ The Supreme Court routinely certifies, and consolidates for review, companion noncapital convictions adjudged in cases where a death sentence could be imposed. ¹⁹⁷ In this way, the Supreme Court avoids having the Court of Appeals unnecessarily consider the same issues on the same record and at the same time as the Supreme Court.

2.802 Amount in Controversy. The amount in controversy in civil appeals to the Supreme Court of Virginia must be $500 or more, not including costs, unless there is an express statutory provision to the contrary or the appeal involves a question concerning a freehold or franchise, or the title or bounds of land, or "some other matter not merely pecuniary." ¹⁹⁸ There appears to be no minimum "amount in controversy" requirement for appeals to the Court of Appeals. ¹⁹⁹

2.803 Final Judgment. Unless an order is one of the specific interlocutory orders discussed in paragraph 2.804 below, a judgment generally must be "final" or "an adjudication of the principles of a cause." ²⁰⁰ A 2018 amendment effectively restated Virginia case law so as to leave no doubt about the criteria for a final judgment:

Unless otherwise provided by rule or statute, a judgment, order or decree is final if it disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court's judgment, order or decree. ²⁰¹

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For an excellent discussion of the principles of finality, see Super Fresh Food Markets of Virginia, Inc. v. Ruffin. ²⁰²

Whether a nonsuit order is a final order and, thus, appealable depends on the facts of the case. ²⁰³ The appealability hinges generally on whether the scenario is one where a party's ability to nonsuit is in question (appealable) versus situations where a nonsuit clearly can be taken (nonappealable). A denial of a motion for a new trial is not an appealable order. ²⁰⁴

Although discovery orders typically are interlocutory and not appealable until the conclusion of the suit, a decision in a Uniform Foreign Deposition Act suit not to quash a subpoena is a final appealable order. ²⁰⁵

In a criminal case, the sentencing order is the final judgment. ²⁰⁶ Except for the limited pretrial appeal of the Commonwealth and cross appeal by the defendant in a felony case pursuant to Va. Code §§ 19.2-398 and 19.2-401, there is no statutory authorization for an interlocutory appeal. "By Code § 19.2-124, the General Assembly has...