Litigation Procedure and Law - § 8-20 - § 8-30

2012–Gerensky-Greene v. Gerensky, Va. Ct. of Appeals, Unpublished, No. 1801-11-4
An order granting non-suit is subject to the provisions of Rule 1:1, and, like all final judgments, remains under control of court for 21 days after entry. (Citing Johnson v. Woodard, 281 Va. 403 (2011)). However, the trial court may avoid the application of the 21-day period by including specific language in the order that the court is retaining jurisdiction to address matters still pending before the court. A mere indication that the court intends to rule on pending matters, however, is insufficient to negate the finality of the order.

The trial court retained jurisdiction to consider a motion for sanctions more than 21 days after entering an order granting non-suit, where the court specifically struck through language stating that the order was final and handwrote “and this cause is continued.”

2011–Switzer v. Fridley, et al., Va. Ct. of Appeals, Unpublished, No. 1986-10-3
The trial court did not err in sanctioning father, pursuant to Va. Code §8.01-271.1, by requiring that he obtain leave of court before filing further pleadings and motions regarding custody or visitation of his child. Father had filed numerous motions and other pleadings over a ten year period, most of which were barred by res judicata, aimed solely at harassing opposing parties and the court, and/or otherwise meritless.

2010–Herrel v. Herrel, Va. Ct. of Appeals, Unpublished, No. 1670-09-3
Trial court did not err in concluding that it had no authority to grant wife's request for relief against ex-husband's prior counsel for costs and fees incurred by wife as a result of husband's and his prior counsel's twelve-year delay in presenting the court with a QDRO for purposes of dividing husband's pension, pursuant to the divorce decree. Even if husband's prior counsel, who never moved for or sought entry of an order of withdrawal, were found to have still been husband's counsel of record twelve years after the entry of the divorce decree, wife's right to any relief in the form of sanctions was against husband himself, not against husband's counsel. Neither Va. Code §8.01-271, which authorizes sanctions based on the contents of pleadings, nor Rule 4:12, which authorizes such an award based on violation of discovery orders applied here, and the court otherwise lacked “inherent authority” to impose as a sanction against the attorney the awarding of attorney’s fees and costs requested here. Thus, wife's motions against husband's former counsel were inappropriately directed.

2007–Switzer v. Switzer,273 Va. 326
Court of Appeals abused discretion in summarily dismissing Father’s appeals based on Father’s failure to pay a monetary sanction imposed by the Court of Appeals in another case. Court of Appeals ordered that Father not file additional appeals until he paid a $500 sanction for filing a frivolous CHINS appeal. Father noted an appeal of that judgment, but never paid. Later, Court of Appeals summarily dismissed Father’s petitions for appeal of separate Circuit Court divorce and custody rulings, based solely on his failure to pay sanction from CHINS appeal. Va. Supreme Court held that the dismissals were “unduly severe and not narrowly tailored to correct the problem” of frivolous appeals, as the sanction “barred all future appeals, regardless of their subject matter or merit…effectively closing the doors of the Court of Appeals to the Father for any appeal involving any subject.”

Court’s imposition of a sanction will not be reversed on appeal unless the court abused its discretion in 1) its decision to sanction the litigant, or 2) in the court’s choice of the particular sanction employed.

§ 8-25. Sealing/Sequestering Court Record

2009–Shiembob v. Shiembob, 55 Va. App. 234
Va. Code §20-104 provides that, upon motion of a party in a divorce action, a trial court may order all or part of the record sequestered. However, the desire of the litigants alone is not sufficient reason to override the presumption of openness otherwise afforded circuit court records under Va. Code §17.1-208. Nor are risks of damage to professional reputation, emotional damage, or financial harm, stated in the abstract, sufficient reasons to seal judicial records.

Trial court did not err, on wife's motion, in vacating its previous order sealing the entire record. The information that husband sought to protect from public record related to stock trading decisions he made during his employment as a financial advisor. Husband's undefined concern that, if made open to the public, such decisions could harm his professional reputation, was not sufficient to rebut the presumption of openness of judicial records.

§ 8-26. Pro Se representation

2012–Wang v. Crumpacker, Va. Ct. of Appeals, Unpublished, No. 1904-11-4
A litigant appearing pro se is no less bound by the rules of procedure and substantive law than a litigant represented by counsel. Even pro se litigants must comply with the rules of court.

1987–Townes v. Commonwealth, 234 Va. 307
The right of self-representation is not a license to fail to comply with the relevant rules of procedural and substantive law. A Defendant who represents himself is no less bound by the rules of procedure and substantive law than a defendant represented by counsel.

§ 8-27 Releases

§ 8-28 Statutory Interpretation/Construction

2016–Newton v. Jones, 66 Va. App. 20 (2016)
When a statute does not deal with the entire subject covered by common law, it abrogates a common law rule only to the extent that its terms are directly and irreconcilably opposed to the rule.

2015–Cook v. Cook, Va. Court of Appeals, Unpublished No. 2104-14-2
The Court of Appeals must assume that the legislature carefully chose the words it used when it enacted a statute, and the court is bound by those words in interpreting the statute.

2014–Bruce v. Boardwine, 64 Va. App. 623
An appellate court construes a statute to ascertain and give effect to the intention of the legislature. Ordinarily, this only requires applying the plain meaning of the words used in the statute because the legislature’s intent is usually self-evident from the statutory language. The meaning of words in a statute may be determined by reference to their association with related words and phrases. When general words and specific words are grouped together, the general words are limited and qualified by the specific words and will be construed to embrace only objects similar in nature to those objects identified by the specific words.

2013–L.F. v. Breit, 285 Va. 163
Va. Code §20-158(A)(3) does not violate the equal protection clauses of the U.S. or Virginia Constitutions simply because it treats married and unmarried individuals differently. Marital status is not a suspect classification. Thus, under the “rational basis” test, the statute is accorded a strong presumption of validity and will be upheld if there is a rational relationship between the disparate treatment and some legitimate government purpose. The Commonwealth has a significant, legitimate interest in encouraging the institution of marriage, and the objective of Va. Code §20-158(A)(3) to protect married couples from potential interference by sperm donors is rationally related to that legitimate government purpose.

2011–Marrison v. Fairfax Cty. Dept. of Family Services, 59 Va. App. 61
The Supreme Court of Virginia has recognized a critical distinction between a lack of subject matter jurisdiction and the unique statutory framework whereby a court can acquire the authority to exercise subject matter jurisdiction. Where a statute contains prohibitory or limiting language, the statute is mandatory, and a court cannot exercise its subject matter jurisdiction if the requirements of the statute have not been met. In contrast, where a statutory directive is merely directory and procedural, as opposed to mandatory and jurisdictional, failure to comply with the statutory requirement does not necessarily divest the court of the power to exercise its subject matter jurisdiction. Stated more directly, the failure to follow a procedural requirement will not prevent a court from exercising its subject matter jurisdiction unless a party can show some harm or prejudice caused by the failure to follow the procedural requirement.

The plain language of a statute determines whether it is mandatory and jurisdictional or directory and procedural. The use of “shall” in a statute requiring action by a public official is directory and not mandatory unless the statute manifests a contrary intent. To determine whether a statute manifests a contrary intent, the Court must determine whether the statute contains prohibitory or limiting language.

The requirement contained in Va. Code §16.1-251(B)–that, upon the taking of a child into custody pursuant to an emergency removal order, a hearing shall be had as soon as practical, but in no event later than five business days after the removal–is directory and procedural, rather than mandatory and jurisdictional. Thus, neither the juvenile court nor the circuit court on appeal lacked subject matter jurisdiction over the petitions for emergency removal. The statute contains no explicit penalty for failure to comply with the five-day requirement nor explicitly renders a hearing held beyond the five- day period invalid. Moreover, the respondents alleged no harm or prejudice caused by the failure to hold the hearing within the five-day period.

2011–Copeland v. Todd, 282 Va. App. 183
Where the words used in a statute are not sufficiently explicit, we may determine the intent of the legislature from the occasion and necessity of the statute being passed or amended; from a comparison of its several parts and of other acts in pari materia; and sometimes from extraneous circumstances which may throw light on the subject.

2011–Bergaust v. Flaherty, 57 Va. App. 423
Where a statute contains no express definition of a term, the legislature’s intent is inferred from the plain meaning of the language used. Courts must give proper grammatical effect to the arrangement of words in the statute and must presume that the legislature understood the basic rules of grammar when drafting the statute. Every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary. At all times, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction. Ultimately, courts must search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.

2010–Andrews v. Creacey, et. al., 56 VA. App. 606
In interpreting a statute, courts endeavor to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature. Statutes which have the same general or common purpose or are parts of the same general plan are ordinarily considered as in pari materia. Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law. They should be construed so as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness.

2006–Britt Construction, Inc. v. Magazzine Clean, LLC, 271 Va. 58
When statutory language is unambiguous, courts are bound by the plain meaning of that language. Therefore, when the General Assembly has used words of a definite import, we cannot give those words a construction that amounts to holding that the General Assembly meant something other than what it actually expressed.

When a statute has been amended, there is a presumption that the General Assembly intended to effect a substantive change in the law. Accordingly, courts assume that a statutory amendment was purposeful, rather than unnecessary.

1993–Decker v. Decker, 17 Va. App. 12
Amendments to § 20-107.3 which altered the burden of proof regarding the increase in value of separate property were procedural, rather than substantive, and could therefore be applied retroactively.

1991–Marion v. Marion, 11 Va. App. 659
As a general rule, laws existing at the time a suit is filed govern the case, in the absence of indications of legislative intent that any subsequent amendments to such laws apply to pending litigation.

§ 8-29 Recusal of Judge

2011–Harnois v. Harnois, Va. Ct. of Appeals, Unpublished, No. 1571-10-1
The trial judge did not err in refusing to recuse himself from a divorce case, despite the fact that he had presided over wife's previous actions for protective orders against husband. The party moving for recusal has the burden of proving the judge's bias or prejudice. In considering a motion to recuse, a trial judge must exercise reasonable discretion to determine whether he possesses such bias or prejudice as would deny a party a fair trial. The issue of bias is not automatically or inferentially raised merely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings.

1992–Buchanan v. Buchanan, 14 Va. App. 53
The trial judge’s refusal to recuse himself was not reversible error. In exercising such discretion, a judge must consider not only his or her true state of impartiality, but also the public’s perception of his or her fairness. Although the trial judge in this case had refused to sign an affidavit supporting Father’s attorney’s application for a law license in West Virginia, and had expressed serious concern with respect to the attorney’s professional conduct, these facts, standing alone, did not require that he recuse himself.

§ 8-30 Disqualification of Counsel

2011–Tucker v. Clarke, Va. Ct. of Appeals, Unpublished, No. 2496-09-4
A consideration involving the disqualification of counsel requires that the court balance several important factors: the right of a party to retain counsel of his choice and the substantial hardship which might result from disqualification as against the public perception of and the public trust in the judicial system. Further complicating the court's task is the possibility of a disqualification motion being misused for the obvious tactical advantages. Thus, a high standard of proof is required of the party seeking disqualification. (Citing In re Chantilly Constr. Corp, 39 B.R. 466, 468-469 (Bankr. E.D. Va. 1984)).

The trial court properly denied mother's motion to disqualify father's brother as father's counsel. Mother failed to allege how she would be harmed if her motion was denied. The hardship to father would be severe because his attorney had been involved on the case since the initial divorce in 2008, and had developed a litigation strategy. Furthermore, mother filed her motion less than one month before trial.

(Return to top of page)

Previous Page