You Can't Assign Error To A Ruling The Lower Court Didn't Make

Assignments of error are one aspect of Virginia appellate practice liable to trip up an unsuspecting practitioner.  Under Rule 5:17(c)(1) of the Rules of the Supreme Court of Virginia, an assignment of error must do more than just state "that the judgment or award is contrary to the law and the evidence."  However, the Rule also makes clear that an assignment of error should be concise and "without extraneous argument."  Over the years, the Court has spilled a lot of ink explaining how a sufficient assignment of error achieves balance between those two poles.

But that is a post for another day.  Today, I want to focus on another aspect of Rule 5:17(c)(1): The requirement that an assignment of error must "address the findings, rulings, or failures to rule on issues in the trial court or other tribunal from which an appeal is taken."

An assignment of error must accurately reflect the lower court's ruling.

The Court will not weigh in on issues not reached by the court below.  For example, in Parker v. Carilion Clinic, 296 Va. 319, 819 S.E.2d 809 (2018), the plaintiff asserted claims against an entity and two employees arising from the unauthorized disclosure of her confidential medical information. The plaintiff's first assignment of error argued that the trial court "erred in ruling there is no cause of action under Virginia law against an employee of a healthcare provider when the employee makes an extra-judicial disclosure of sensitive confidential personal health information without the authorization of the patient-plaintiff."  

But the trial court never made that ruling.  It merely ruled that the entity wasn't liable under respondeat superior because the employees acted outside the scope of their employment.  It did not address whether the plaintiff had claims against the employees individually.  Accordingly, the Court dismissed the assignment of error.

In Parker, the appellant secured a (partial) reversal and remand on the issue the trial court actually decided.  So her attempt to assign error to a nonexistent ruling had no real adverse consequences.  A far more damaging mistake an attorney can make, however, is misdescribing the lower court's ruling in an assignment of error.

That is what happened in Martin v. Lahti, 295 Va. 77, 809 S.E.2d 644 (2018), a medical malpractice case.  At trial, the plaintiff testified that the deceased patient made a statement after the surgery in question: "I thought this would be an easy operation."  The trial court sustained the doctor's objection to the admissibility of that statement on relevance grounds.

On appeal, however, the plaintiff's assignment of error did not reflect the trial court's ruling that the statement in question was irrelevant.  Instead, her assignment of error argued that the trial court "erred in ruling that Plaintiff's proffered evidence was inadmissible hearsay and speculation."  Because that assignment of error did not accurately describe the trial court's ruling, the Court held that it was not sufficient.  Worse, because the plaintiff failed to assign error to the ruling the trial court did make, she waived her ability to challenge the trial court's ruling on appeal.

Crafting assignments of error in the Supreme Court of Virginia is tricky business.  There are several mistakes an attorney can make that will torpedo a client's appeal.  One of them is misdescribing the lower court's ruling.  Before you file a petition for appeal, make absolutely sure that your assignments of error accurately reflect what happened below.

Benjamin P. Kyber
Richmond Appellate Law Attorney Serving Virginia, Henrico County.
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