The Supreme Court of Virginia’s new opinion in Hutchins v. Talbert provides a useful cautionary tale for trial lawyers.
Procedurally, the case is a riddle, wrapped up in a mystery, inside a nightmare. Let’s start at the beginning. Here’s how Justice Goodwyn, writing for the Court, frames the issue presented in the first sentence of the opinion:
[W]hether an order denying a motion to set aside the verdict is a final judgment for purposes of appeal when the trial judge has rendered final judgment in a separate, previously entered order, which is not vacated, suspended, or modified by the order ruling upon the motion to set aside the verdict.
Got that? Yikes. But don’t give up yet.
We’re obviously somewhere in the no-man’s land of procedural default. Let’s unpack the facts one step at a time:
- On April 25, 2008, the trial court entered a final order.
- Also on April 25, 2008, the trial court entered an order suspending the final judgment for 14 days, tolling Rule 1:1’s 21-day limit and allowing a total of 35 days for entry of an amended final order. In other words, the order was suspended until May 30, 2009.
- Hutchins filed a motion to set aside the verdict.
- On May 28, 2008, the trial court entered an order denying the motion to set aside the verdict, without referring to the final judgment at all.
- On June 19, 2008, Hutchins filed a notice of appeal.
You can see where Hutchins is coming from, right? He thought that because (1) he’d filed a timely post-trial motion, which (2) the trial court ruled on while it retained jurisdiction, (3) the May 28 order was the final order that set the 30-day notice of appeal deadline running. Ergo, his June 19th notice was timely.
Talbert–represented by hometown favorite and all-around good guy Frank Friedman–moved to dismiss Hutchins’ appeal. He argued that the suspension order expired on May 9th. Under Rule 5:9, Hutchins had 30 days to file a notice of appeal from May 9th, so his June 19th notice of appeal was untimely.
Talbert was right. Here’s how it breaks down:
- Rule 5:9 requires an appellant to file a notice of appeal within 30 days after entry of final judgment or other appealable order–or within any extension granted under Rule 5:5(a). As appellate practitioners know, this deadline is mandatory and jurisdictional.
- Rule 5:5(a) states that “[t]he time period for filing the notice of appeal is not extended by the filing of a motion for a new trial, a petition for rehearing, or a like pleading unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule 1:1 . . .”
- Finally, Rule 1:1 provides that all final judgments, orders, and decrees shall remain under the control of the trial court and subject to be modified, vacated, or suspended for 21 days after the date of entry, and no longer.
Applying these rules, the Supreme Court determined that the April 25th order was self-executing, and expired by its own terms on May 9. The 21-day period under Rule 1:1 and the 30-day period under Rule 5:9 both began to run on that date. Hutchins missed both deadlines, so he was out of court. Consistent with prior caselaw (which it didn’t cite), the Court made it very clear that only an order vacating, suspending, or modifying the final judgment will toll these deadlines; an order denying a motion to set aside the verdict will not do the trick.
What can we learn from Hutchins?
- Beware of trial judges bearing gifts. Trial court judges will sometimes try to do
their docketslitigants a favor by extending deadlines, assuring lawyers that their objections have been preserved, etc. Don’t believe them–you must know the rules and the deadlines, and understand which can be finessed and which cannot. For example, once a final order has been entered, only an order within the Rule 1:1’s 21-day time period that expressly modifies, vacates, or suspends the final judgment will permit the trial court to retain jurisdiction. See Super Fresh Food Markets of Va. v. Ruffin, 263 Va. 555, 563-64, 561 S.E.2d 734, 739 (2002). It doesn’t matter if the trial judge meant well, or honestly intended to extend a deadline–if he or she did not do so effectively under the letter of the Rules, then you can wind up out of court, despite the judge’s best intentions.
- Read the rules and count the days. It’s simple. It’s boring. But you have to do it. All of the very best appellate lawyers I know go back and read the rules again before a key filing–every time. And they count (and recount) days with religious intensity. (Helpful trick: you can use the Outlook calendar’s “Go to Date” feature to automatically count days. But still double-check the old-fashioned way.)
- It pays to have an appellate specialist on the trial team. Waiting until an appeal is filed to consult with an appellate specialist is often too late, particularly with respect to issues of finality and preservation of error.
Put slightly differently, the lesson of Hutchins is to trust but verify.
Finally, just in time for the Harvard-Yale game, Super Lawyers will release its inagural ranking of law schools today. According to the WSJ Law Blog, Harvard is #1 and Yale is a lackluster #10. (For all you Wahoos, UVA checks in at a very respectable #4. But you’re still #1 at softball.)