We get questions about this a lot.
When the Supreme Court of Virginia issues a mandate affirming a judgment, it will sometimes include this line: ‘The appellant shall pay to the appellee two hundred and fifty dollars damages.”
Occasionally, the appellee maybe curious about his unexpected windfall. But when you’re on the wrong end of one of these mandates and you haven’t warned your client in advance, brace yourself for
great vengeance and furious anger understandable consternation. It’s bad enough that the appellant has lost her appeal. Now she has to pay two hundred and fifty dollars to the appellant? Where did that come from?! It probably doesn’t help that the Court”s form language doesn’t explain the damages or cite any authority. The whole thing can seem a little arbitrary.
It’s not. And the Court isn’t being mean or piling on. If anything, the Court is being charitable.
That’s because Virginia Code Section 8.01-682, “What damages awarded appellee,” states:
When any judgment is affirmed, damages shall be awarded to the appellee. When the judgment is for the payment of money, the damages shall be the interest to which the party is legally entitled from the date of filing the notice of appeal until the date the appellate court issues its mandate. Such interest shall be computed upon the whole amount of the recovery, including interest and costs, and such damages shall be in satisfaction of all interest during such period of time. When the judgment is not for the payment of any money, except costs, the damages shall be such specific sum as the appellate court may deem reasonable, not being more than $2,500 nor less than $150.
When it affirms a nonmonetary judgment, the SCV has no choice but to award the appellee between $150 and $2,500 in damages. The General Assembly has tied its hands. In fact, the General Assembly amended the statute in 2010, increasing the maximum damages award from $100 to $2,500.
The Court’s $250 award is actually pretty charitable when viewed in that context. (And for some reason, the award always seems to be $250; off the top of my head, I can’t remember a case where it awarded a different amount.)
Would it soften the blow if the Court cited authority for the award? Sure. It would also soften the blow if adverse rulings came on Hallmark cards, with a personal note of apology. But we’re all grownups, and part of the reason that people hire appellate lawyers is to explain these mysteries.