I’m always on the lookout for new ways to lose an appeal.

Steve Emmert and Kevin Martingayle showed me one in their recent webinar, Preventing Nightmares: Preserving Issues and Avoiding Waiver.

They call it the “successful-appellant trap,” and it’s based on the Supreme Court of Virginia’s recent holding in VMRC v. Clark, 281 Va. 679 (2011).

Clark involved an administrative law appeal that was prosecuted before the Marine Resources Commission, the circuit court, the Court of Appeals, and the Supreme Court of Virginia. A group of citizens challenged the Commission’s issuance of a permit. The circuit court ruled that they lacked standing to object. They asked for leave to amend their complaint, which the circuit court denied.

The Court of Appeals reversed, agreeing with the citizens that it’s unnecessary to allege standing in administrative law appeals. It did not reach the leave-to-amend issue.

The Commission appealed, and the SCV reversed on the standing issue, holding that standing is essential for any litigant. So far, so good.

But the SCV then refused to address citizens’ claim that they should have an opportunity to amend to assert proper standing, because the citizens hadn’t appealed the intermediate appellate court’s failure to address that issue. The SCV therefore reversed and entered final judgment against the citizens.

If Clark actually means what it seems to say, then it’s very bad news for folks like me. Its holding requires a successful litigant to appeal anything less than an unconditional victory in order to preserve points for appeal. That is, if you give the court five reasons why you should win, and the court sides your way on four of them but doesn’t reach the fifth, under Clark you apparently need to cross-appeal its failure to reach that issue or waive the point for appeal. This is true even where the lower court had a perfectly good reason for not reaching the issue–e.g., where the first four rulings render the fifth point moot.

There are several problems with this rule:

• First, it’s inefficient. Clark requires a successful litigant to appeal everything that did not go her way, just to protect her position on appeal. That will require litigants to waste pages briefing against shadow arguments. Even worse from the system’s perspective, somebody (ahem) is eventually going to have to read those briefs.
• Second, what happened to the right result for the wrong reason? We just learned in Perry and Banks that the SCV will affirm a lower court that arrived at the correct disposition, even if its reasoning was incorrect, so long as the record supports the alternative ground for affirmance. Presumably, the record in Clark supported affirming the CAV’s reversal and remand on the alternative ground that the trial court should have granted the citizens leave to amend. Why wasn’t that good enough to save the citizens’ case?
• Third, this rule is very harsh on the citizens. It’s one thing to require litigants to assign error to rulings that aggrieve them. But the CAV’s ruling did not really aggrieve the citizens; it gave them what they asked for–reversal and remand–and did not reach their procedural argument about leave to amend, because it didn’t have to. Requiring them to appeal that ruling is more than counter-intuitive. It is, as Martingayle and Emmert suggest, nothing less than a trap.
• Fourth, the efficiency and fairness problems in Clark all flow from the Court’s requirement of binding assignments of error, which we’ve complained about before. The successful-appellant trap would not arise in federal court.

With luck, the Supreme Court will distance itself from Clark–at least as it applies to points rendered moot by the lower court’s ruling. Until then, appellants have one more reason to be wary.