• Supreme Court of Virginia Rule Amendment Simplifies Appellate Practice, but a New Rule has Shortcomings
  • October 31, 2017 | Author: Cynthia D. Kinser
  • Law Firm: Gentry Locke Attorneys - Roanoke Office
  • Cynthia Kinser was the first woman Chief Justice of the Supreme Court of Virginia. Her seventeen years of distinguished service to the Court ended with her retirement in 2014. In 2015, she joined Gentry Locke as Senior Counsel, where she focuses on appeals, criminal matters, and government investigations.

    The Supreme Court of Virginia amended Rule 5:17 and added a new rule, Rule 1:5A. The amendment to Rule 5:17(a)(1) simplifies calculation of the time period for filing a petition for appeal. The addition of Rule 1:5A eliminates a harsh outcome when a pleading or other paper is not signed or is signed by a person not licensed to practice law in the Commonwealth. Some provisions of Rule 1:5A, however, have limited application.

    On July 1, 2017, the time for filing a petition for appeal in an appeal from a circuit court to the Supreme Court of Virginia changed. For decades, a petition for appeal had to be filed “not more than three months after entry of the order appealed from.” Va. Sup. Ct. R. 5:17(a)(1) (former version). The amendment converted the three-month period to 90 days. Now, a petition for appeal must be filed “not more than 90 days after entry of the order appealed from.” Va. Sup. Ct. R. 5:17(a)(1). The new time period came about as a result of the General Assembly’s amendment of Virginia Code § 8.01-671. The change makes calculation of the deadline for filing a petition for appeal more straightforward and eliminates uncertainty caused by the difference in the number of days in some months.

    Effective August 1, 2017, a notice of appeal signed only by an attorney or other purported representative who is not then authorized to practice law in the Commonwealth is no longer fatal to the appeal. A new rule allows a later notice of appeal in the same proceeding to relate back to the filing date of the original notice of appeal. Va. Sup. Ct. R. 1:5A(e). Rule 1:5A(e) speaks to the problem that occurred in Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671 (2002), where a notice of appeal executed solely by an attorney admitted pro hac vice was deemed invalid.

    The later notice of appeal must be properly signed by an attorney qualified to practice law in the Commonwealth and filed within 90 days of the original notice of appeal. It must also be filed on behalf of the same party or parties and relate to the same judgment or order. Unlike the requirements in subsections (a) and (b) of Rule 1:5A, the plain terms of subsection (e) do not require notice to the other parties or leave of the court to file the later notice of appeal. But see, Va. Sup. Ct. R. 1:8 (requiring leave of the court to amend any pleading).

    The curative provision in subsection (e), however, applies only to a notice of appeal from a circuit court. It does not pertain to other required notices of appeal, such as those filed in appeals from: (1) the Court of Appeals of Virginia to the Supreme Court of Virginia; (2) the State Corporation Commission to the Supreme Court of Virginia; and (3) the Virginia Workers’ Compensation Commission to the Court of Appeals of Virginia. It also does not apply to a notice of appeal from the circuit court that is not signed by anyone, or to other appellate pleadings and papers.

    Arguably, appellate practitioners can utilize subsections (b) and (c) of Rule 1:5A to cure signature defects in these other situations. Rule 1:5A is included in Part One of the Rules of the Supreme Court of Virginia. Part One is applicable to all proceedings.

    Subsection (b) establishes a procedure allowing a pleading or other paper that is not signed, or is signed by an individual not authorized to practice law in the Commonwealth, to be cured. Va. Sup. Ct. R. 1:5A(b). Within a reasonable time after the defective pleading or other paper is filed, counsel authorized to practice law in the Commonwealth must give notice to the opposing parties and seek leave of the court to file a properly executed pleading or other paper. Whether to grant leave lies within the court’s sound discretion, but such leave shall be liberally granted to further the ends of justice. Va. Sup. Ct. R. 1:5A(c). If leave is granted, the properly executed pleading or other paper relates back to the date on which the defective pleading or paper was originally served or filed.

    Rule 1:5A also has a tolling provision. Va. Sup. Ct. R. 1:5A(d). If a complaint commencing a civil action is dismissed because it was signed by a person not authorized to practice law in the Commonwealth, the statute of limitations for re-filing any claims asserted in the complaint is computed in accordance with Virginia Code § 8.01-229(E)(1). The time the action was pending is not computed as part of the period within which the action must be brought.

    The tolling provision in Rule 1:5A(d), however, has limited application. It relates solely to a complaint filed in a civil action as provided in Rule 3:2(a), meaning complaints filed in circuit court. Rule 3:2(a) is found in Part Three of the Rules of the Supreme Court of Virginia, which pertains to civil actions in the circuit courts. Further, the tolling provision does not benefit a complaint that is dismissed because it was not signed by anyone.

    In summary, the amendment to Rule 5:17(a)(1) simplifies appellate practice. The laudable purpose of Rule 1:5A to cure defectively executed pleadings and other papers is tempered by the narrow scope of some subsections and the lack of clarity.

    So, be wary. Reading the rules, and reading them again, is always prudent to avoid the pitfalls that can prove fatal even with these recent amendments.