SCOVA handed down a new Rule 1:1 opinion this week, Kosko v. Ramser. The basic setup is straightforward: A med-mal plaintiff took a nonsuit on the second day of trial, September 11, 2019. Because the nonsuit was within seven days of trial, the defendant asked for its costs under Code § 8.01-380(C).

The trial court scheduled argument on the motion for costs for October 1–that is, 20 days after entry of the nonsuit order. The court ruled from the bench that the defendant was entitled to $20,000 in costs, directing the defendant to prepare an appropriate order. But it did not enter that order until November 5, which was way more than 21 days after entry of the nonsuit order.

The plaintiff appealed, arguing that under Rule 1:1, the trial court lost jurisdiction to award costs 21 days after entry of the nonsuit order.

SCOVA agreed. It reversed the trial court and entered final judgment in a tight  opinion written by Justice McCullough. While Kosko‘s result is unsurprising, the opinion is worth reading because it quickly recaps some key rules about final orders.

The Court explained that under Rule 1:1, final judgments remain in the trial court’s control and may be modified, vacated, or suspended for 21 days after the date of entry. An order’s date of entry is the date on which it is signed by the judge. And a final order is one which “disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the judgment.”

Nonsuit orders are generally treated as final orders. A court’s oral ruling from the bench indicating that it would modify a final order typically does not qualify as entry of an order for purposes of Rule 1:1. Neither party asked the Court to modify its approach to finality under Rule 1:1 or overrule its precedent about rulings from the bench.

Thus, the narrow question in Kosko was whether the nonsuit statute, allowing for recovery of costs when a plaintiff nonsuits within seven days of trial, changed these background rules. The defendants argued that the costs provision rendered a nonsuit order nonfinal when the nonsuit is taken within seven days of trial, because then defendant is then entitled to costs. Nonononononon.

The Court disagreed. It explained that an order is final when it disposes of the entire action. An “action” comprises the claim or claims in the plaintiff’s complaint and any counterclaims. In Kosko, the nonsuit resolved all that. So the nonsuit order disposed of the entire action. That was true irrespective of the motion for costs: “The filing of ancillary motions for the recovery of costs or the filing of other post-trial motions does not suddenly transform an otherwise final order into a nonfinal order.”

What’s more, the defense argument had no limiting principle; nothing would cabin it to nonsuit orders. Instead, “anytime a litigant seeks other kinds of recoverable costs, or for that matter files any post-trial motion, there would, by definition, remain something to be done. Cases could be placed on indefinite hold by the filing of post-trial motions.” The Court saw little to recommend that approach.

Finally (heh), once a final written order is entered, Rule 1:1 gives the trial court 21 days to either

• enter a new written order, or
• enter a written order modifying, suspending, or vacating the prior order to allow the court sufficient time to address the post-trial motion.

This comports with the notion that a trial court speaks only through its written orders, and those written orders speak as of the day they were entered. Orders are “entered” on the day they are signed by the judge.

Predictable as its outcome may have been, Kosko offers some handy takeaways:

• Beware trial judges bearing gifts. Trial judges try to do the right thing–like, for example, awarding the defendant costs here. But they’re not always sensitive to the nuances of the limits on their jurisdiction. The litigants need to keep on top of that. Remember Reagan’s quip about the nine most terrifying words in the English language? Well, judges work for the government.
• “Final” is a term of art. I’ve never liked the definition of final order–an order that “disposes of the entire action and leaves nothing to be done except the ministerial superintendence of execution of the judgment”–because it’s not really true. There’s a bunch of stuff that can be “left to be done” in a case after entry of a final order. As Kosko makes clear, this includes the “filing of ancillary motions for the recovery of costs or the filing of other post-trial motions.” The rules here are not always intuitive and they can trap the unwary.
• Suspend, modify, or vacate IN WRITING. Yes, I’m shouting. Rule 1:1(a) lets a trial court suspend, modify, or vacate a final order within 21 days of entry. That’s a great tool and Kosko explicitly tells us how to use it: “Once a final written order is entered, a trial court has twenty-one days to enter a new written order or to enter a written order modifying, suspending, or vacating the prior order to allow the court sufficient time to address the post-trial motion.” So if you’re even thinking of messing with a final order, IMMEDIATELY ask the court to enter a written order modifying, suspending, or vacating that final order to allow consideration of the post-trial motions. There is literally no reason not to do this.
• Do the order at the hearing. I will never understand this thing Virginia judges do where they make a ruling and tell counsel to prepare an order memorializing that ruling. Why?! The judge is the only person in the courtroom who knows exactly what that order is supposed to say, and by the time she sees it, she will have forgotten. This is a bad system. It gives everybody one more thing to fight about and it can delay entry of the order by weeks. Federal judges, by contrast, ask lawyers to tender proposed orders with their motions, and then write their own orders. Which, after all, memorialize their own rulings. Much better! Yet if we have to live in a world where the litigants write the orders, at least follow Steve Emmert’s advice and bring a written order ruling in your favor to the hearing. Put it in front of the judge and ask her to sign it then and there. Opposing counsel will protest and ask for time to review the proposed order. In many parts of the state, the judge will agree. Opposing counsel will then spend the next three weeks considering 30 words that basically say “the demurrer is overruled for the reasons stated from the bench.” Or they’ll never respond at all. Whatever. But if we’re in ticking-clock finality land under Rule 1:1, I would politely insist that the order–or at least an order suspending the final order to allow consideration of the post-trial motion–be entered at the hearing, and I would explain why.

When it comes to finality, I try to heed Justice Mims’s advice: When in danger/When in doubt/Run in circles/Scream and shout. Kosko shows why.