by E. Edward (“Ed”) Farnsworth, Jr., Esq.

Samuel I. White, P.C.
USFN Member (DC, MD, VA, WV)

For the longest time, Virginia held steadfast to discretionary appellate review by the Virginia Supreme Court in civil matters, making them the lone holdout nationally in this regard. While Virginia does have an intermediate appellate court, the Virginia Court of Appeals (“Court of Appeals”), its jurisdiction was limited to criminal cases, domestic relations, workers’ compensation, and state administrative rulings. Currently, if an unsuccessful civil litigant desires to appeal they must petition the Virginia Supreme Court who has discretion to accept or reject the case. Appellants face an uphill battle because only about 25% of petitions are granted annually. However, a new day has dawned for Virginia appellants thanks to the passage of Virginia Senate Bill 1261.

Starting January 1, 2022, all civil litigants will have an appeal of right to the Court of Appeals. Criminal defendants will also have an appeal of right to the Court of Appeals, but this article will focus solely on civil matters. A random panel of three Court of Appeals’ judges will consider each appeal. This new right will be tempered, however, by the fact that the new legislation empowers the Court of Appeals to dispense with oral arguments and decide the appeal on the briefs and record where the panel finds the appeal meritless, or the issue presented has been dispositively determined by previous binding precedent and the appellant has not requested a reversal, modification, or extension. A losing party may petition the Virginia Supreme Court for a further appeal, which follows the previous discretionary appellate process.

The new appellate procedure is going to impact Virginia litigation in several ways. First, Virginia Court of Appeals’ decisions will result in more binding precedent. Currently, precedent from the Virginia Supreme Court develops at a stately pace because of the small number of appeals accepted annually. Settlement strategy and considerations will also change a bit. Parties will no longer feel the same level of appellate risk that existed when each had to face only a 25% chance of their appeal being accepted if they lost. This shared risk encouraged settlement in some cases. Now, the potential elongated length and increased costs of the new appellate process will likely become a more pressing settlement consideration.

In the default servicing context, this new right will elongate timelines and litigation costs for defending foreclosure challenges and prosecuting eviction matters. Regarding evictions, a borrower already has a right to appeal a grant of possession by the General District Court to the Circuit Court. The new procedure adds yet another appeal of right layer. This additional layer of appellate right could profoundly increase eviction timelines and costs beyond what has become the expectation for default servicing clients. Strategically, emphasis will need to be placed on securing robust supersedeas and appeal bonds—both of which are available in Virginia. Careful attention to potential procedural grounds to quash appeals will also be important. In eviction matters, an increase in the size of “cash for keys” offers may also be warranted for contested cases.

For attorneys in the other 49 states, an appeal of right is nothing new and is part of the litigation landscape. However, in Virginia this is new territory, so default servicing attorneys will need to become even more familiar with the appellate process to properly navigate its contours and nuances on behalf of clients.

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October 2021 e-Update