Last week, the Supreme Court of Virginia issued its opinion in Henderson v. Cook, 2019 Va. LEXIS 96 (Aug. 23, 2019), an appeal involving the respective roles of circuit courts and commissioners of accounts in settling accounts prepared by fiduciaries. In the Court's 13-page opinion, however, the substance of that issue took a back seat to a lengthy discussion of the appellant's decision to change her assignments of error between her petition for appeal and opening brief.

It is improper to change an assignment of error mid-appeal!

The Court is clearly irked that it keeps having to address this issue.  "Once again," the Court sighs, "we find ourselves revisiting the issue of how to dispose of a case where the appellant has changed the assignments of error presented in the petition for appeal either in its brief or in its argument."  The Court is "perplexed as to why this issue continues to arise," and for good reason.  Since 1994, it has decided no less than eight cases holding that it is improper to change an assignment of error mid-appeal.  The Court includes all of them in a page-long string cite, before emphasizing, once again, that: "Our case law could not be more clear: absent leave of Court, granted assignments of error should not be altered on appeal either on brief or at oral argument for any reason."

But what happens when, as here, the Court "has to deal with the fact that [a] litigant has" improperly modified an assignment of error?  That largely depends on the nature of the modification.  If it is non-substantive and would not allow the appellant to argue different issues than the original assignment, the appellant does not default the issue.  See Escamilla v. Superintendent, 290 Va. 374, 379 n.4 (2015).  Thus, while it is always improper to alter an assignment mid-appeal, it is not fatal if the appellant merely changes the wording but does not change the meaning.

Here, however, the Court assumes without deciding that Henderson's modifications did change the substance of the assignments.  In such circumstances, an appellant can only escape default if her brief adequately addresses the issue raised by the original assignment.  See White v. Commonwealth, 267 Va. 96, 103 (2004).  The Court finds that to be the case here, which is especially fortunate for Henderson because she ends up winning on the merits.

Not every appellant is so lucky.  The Court will never address new issues raised by an improperly modified assignment of error.  For example, in Hudson v. Pillow, 261 Va. 296, 302 (2001), the Court declined to consider Hudson's second assignment of error in her opening brief after finding that it was "entirely different" than the original.  

Although some litigants, like Henderson, get away with modifying assignments of error mid-appeal, there is no reason to try it yourself.  The Court will not consider any substantive change you make.  At best, you'll draw the Court's ire.  At worst, you risk procedually defaulting your client's appeal.  Just don't do it.

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