Rule 5:8A, “Appeal from Partial Final Judgment in Multi-Party Cases,” is a completely new–and highly technical–rule. It is intended to clarify who may appeal and when in cases involving multiple claims and multiple parties. The advisory committee’s report indicates that the Rule was adopted in response to a general sense of confusion about appellate rights in multi-party litigation; procedure geeks will recognize it as an effort to allay some of the uncertainty created by the so-called “severable interest rule.” See, e.g., Thompson v. Skate Am., Inc., 261 Va. 121, 127, 540 S.E.2d 123, 126 (2001).
This a thorny, technical area. The new Rule addresses it by placing the burden squarely on the parties and the trial court. It provides that, when claims for relief are presented against multiple parties, the trial court may enter final judgment as to one or more but fewer than all the parties only by entering an order expressly labeled “Partial Final Judgment,” which contains explicit findings that:
- the interests of the parties and the grounds upon which judgment is entered are separate and distinct from those raised by the issues and the claims against the remaining parties; and
- the results of any appeal from the Partial Final Judgment cannot affect the claims against the remaining parties; and
- decision of the claims remaining in the trial court cannot affect the disposition of the claims against the parties subject to the Partial Final Judgment if those parties or later restored to the case by reversal of the Partial Final Judgment on appeal.
Got that? Now close your eyes and try to imagine yourself persuading a circuit judge to make those findings.
Rule 5:8A states that “no appeal shall lie from a refusal by the trial court to enter a Partial Final Judgment under this rule.” It specifies that, absent a Partial Final Judgment order entered under its terms, an order that adjudicates fewer than all of the claims or rights and liabilities of fewer than all the parties in an action is not a final judgment.
The timing of an appeal under Rule 5:8A follows the normal deadlines in Rules 5:9 and 5:17.
This is bad stuff. Hairy procedural issues? Magic words and special incantations? Deadlines tied to the lunar calendar? It’s almost like . . .
What Practitioners Need to Know about Rule 5:8A:
- Rule 5:8A requires entry of a Partial Final Judgment order with certain explicit findings as a prerequisite to the appeal of an order that is final as to some but not all of the parties.
- It is therefore imperative to develop an appellate strategy early in the case and to carefully analyze rulings that are dispositive as to part, but not all of the case, in order to ensure that the trial court takes the necessary steps and makes the required findings to preserve the right to an immediate appeal.
- If the trial court dismisses some (but not all) parties, but does not comply with Rule 5:8A, you may still be able to save your right to an immediate appeal by nonsuiting the remaining claims. But that is a high-risk and high-degree of difficulty maneuver. You will need to investigate statute of limitations and waiver issues (among other things) before even considering it.
And here’s one last chilling thought: beware the interplay of Rule 5:8A, with its heady technical requirements, and Rule 5:1A, which provides that, if an attorney’s failure to comply with the Rules results in dismissal, the Court may report the attorney to the State Bar.