Binding assignments of error are a disaster, which is probably why Virginia is one of only eight states that still require them.*
By way of background, Rule 5:17(c)(1) requires that
Under a heading entitled “Assignments of Error,” the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely, or the specific existing case law that should be overturned, extended, modified, or reversed. An exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken shall be included with each assignment of error.
The case law amplifies this rule, teaching us that an appellant must use the assignment of error to “lay his finger on the error” in the ruling below; it’s not enough to simply say that the judgment was contrary to the law or the evidence.
The penalty for an insufficient assignment of error is dismissal. And the Court does in fact terminate appeals for problems with assignments of error–sometimes because the assignments of error are too general, and sometimes because they’re too narrow. The advocate’s challenge is to find what my pal Steve Emmert calls “The Goldilocks Zone,” where the assignment is specific enough to be viable, but not so narrow as to hamper review.
This is easier said than done, particularly since you face the death penalty for getting it wrong. And not all the justices view these standards the same way.
Case in point: The Court granted three petitions for appeal in the past week. This implies that, for each appeal, at least two justices on the panel of three (or four) justices (and senior justices) that heard each writ argument felt that the assignments were appropriate.
So let’s take a look at this week’s assignments.
The first case, Cuff v. Commonwealth, turns on one assignment of error:
The Court of Appeals erred in finding Cuff’s guilty pleas were not coerced, where his trial attorney admitted he threatened to withdraw from Cuff’s case if Cuff did not accept the Commonwealth’s plea agreement.
The second case, Meade v. Bank of America, N.A., asserts two:
1. The Circuit Court of Chesterfield County, Virginia (“the trial court”) erred in its order entered on May 1, 2017 sustaining the pleas in bar filed by appellees Bank of America, N.A.
(“Bank of America”) and Carrington Mortgage Services, LLC (“Carrington Mortgage”) holding that the complaint filed by the appellant Mary Harris Meade (“Meade”) seeking rescission of a foreclosure and foreclosure deed of her home (“the home”) located at 2541 Grassy Knoll Lane, North Chesterfield, Virginia 23236 was barred by the five year statute of limitations of Va. Code Ann. Section 8.01-246(2); and ordering dismissal with prejudice of Meade’s complaint, in which she pled Bank of America breached a prohibition against acceleration of the note and foreclosure under the deed of trust absent compliance with a face-to-face FHA regulatory requirement incorporated into the note and deed of trust. The May 1, 2017 order was based on the trial court’s holding that Meade’s cause of action accrued when Bank of America first failed to comply with the FHA face-to-face regulatory requirement (“the face-to-face regulation”) and that, on that basis, her complaint was filed past expiration of the aforesaid five-year statute of limitations. This was error because Meade had no cause of action when Bank of America first failed to comply with the FHA face-to-face regulatory requirement because there is no private right of action for breach of an FHA regulation. Meade’s cause of action first accrued upon acceleration of the note in breach of prohibitions against acceleration in the face-to-face regulation incorporated into the note and deed of trust and upon foreclosure of the home in breach of prohibition against foreclosure in the deed of trust absent compliance with the face-to-face regulation. Because the foreclosure occurred on March 13, 2014, less than five years before Meade’s complaint filed on December 7, 2016 and because there was no evidence of the date of
Bank of America’s acceleration of the note, the trial court erred in ruling that the statute of limitations had expired before Meade filed suit and erred in ordering dismissal with prejudice of her complaint.
2. The trial court erred in its final order entered on November 20, 2017 reaffirming the trial court’s May 1, 2017 order granting the pleas in bar of Bank of America and Carrington and
dismissing with prejudice Meade’s complaint as against all parties on grounds that the complaint was filed after expiration of the five-year statute of limitations in Va. Code Ann. Section 8.01- 246(2). This was error because no cause of action averred in the complaint accrued on breach of the FHA face-to-face regulatory requirement, rather the accrual of any cause of action on behalf of Meade involved in her complaint did not first accrue until the lender first accelerated the note, and foreclosure on the home and there was no evidence as to the date of acceleration and the foreclosure occurred on March 13, 2014, less than five years before the complaint filed December 7, 2016.
And the third, Gordon v. Kiser, blitzes us with these:
1. The Wise Court erred in not granting my motion for a nonsuit of this case.
2. The Wise Court erred in not stating at least one reason for not granting me a nonsuit of this case.
3. The Wise Court erred in not holding a hearing on my motion for a nonsuit of this case as I requested.
4. The Wise Court erred in finding that my Complaint failed to state a claim for injunctive relief.
. . . still going . . .
5. The Wise Court erred in finding that Article I, § 1 of the Constitution of Virginia does not entitle me to safe dental treatment as a matter of right.
6. The Wise Court erred in finding my Complaint is frivolous.
7. The Wise Court erred in not following Tolbert v. Stevenson, 635 F.3d 646, 649 (4th Cir. 2011), when assessing strikes against me for cases dismissed only in part for failure to state
8. The Wise Court erred in not granting me time in which to file a declaration in opposition to Defendants’ demurrer and motion to dismiss.
. . . we’re not done yet . . .
9. The Wise Court erred in assessing strikes against me for cases dismissed upon grant of summary judgment.
10. The Wise Court erred in imposing overly broad sanctions on me that encompasses non in forma pauperis filed cases.
11. The Wise Court erred in imposing sanctions on me pursuant to Va. Code § 8.01-271.1.
Today’s cases, in short, offer widely varying interpretations of Rule 5:17(c). It remains to be seen which interpretation(s) get(s) the blessing of a majority of the justices.
To be clear, I’m not posting these assignments to fault any of them (or the lawyers who wrote them). Far from it: Cuff may stand out as Goldilocks in this set, but if you asked me whether, say, each assignment in Gordon identified the specific errors in the rulings below to the satisfaction of four justices, or if the assignments in Meade were clear and concise and without extraneous argument, I couldn’t tell you with any certainty. I don’t know. I can also imagine a situation where the assignment from Cuff backfires. And in all candor, I’ve gotten these calls wrong myself in the past.
Now compare this mess with the questions presented that you find in SCOTUS briefs, which are generally elegant, persuasive, and focused. SCOTUS Rule 14(1)(A) requires petitioners to identify questions presented for review, and assures them that “any question presented is deemed to comprise every subsidiary question fairly included therein.”
A similar assurance in the Rules of the Supreme Court of Virginia could assuage a lot of concerns.
And before you @me with Findlay v. Commonwealth, 287 Va. 111 (2014), we’ll use the next post to discuss why that case is not as instructive as people think.
* The other seven offenders are Louisiana, Nebraska, Ohio, Oklahoma, Oregon, Washington, and West Virginia.