When the Supreme Court of Virginia issues an opinion that has nothing to do with the subject matter of the underlying appeal, appellate procedure geeks like me immediately take notice. That's what happened last week, on the day before Thanksgiving, when the Court issued its opinion in Sheehy v. Williams. Now that all are back at their desks, and have presumably recovered from their food comas, let's take a moment to discuss what happened.
How did we get here?
On its face, Sheehy involves two consolidated appeals challenging awards of liability/damages, fees, and costs under Va. Code § 8.01-40.4, which establishes a civil damages action for "disseminating images" of another "in a manner prohibited by Code § 18.2-386.2."
Why, then, did the Court spend most of its opinion discussing a real estate transaction that happened more than a year after the final judgment? Justice Kelsey cuts right to the chase: After Sheehy appealed, "the judgment amount was paid in full." As such, Williams moved to dismiss Sheehy's appeals, arguing that they were barred by the voluntary payment doctrine.
By voluntarily paying a judgment, you waive your right to appeal it.
Under the voluntary payment doctrine, as it exists in Virginia, “[v]oluntary payment of a judgment deprives the payor of the right of appeal.” Citizens Bank & Tr. Co. v. Crewe Factory Sales Corp., 254 Va. 355, 355 (1997). Note that not every payment of a judgment causes a judgment debtor to forfeit her appeal rights. Only a voluntary payment.
So, if a judgment creditor takes steps to collect a judgment by, for example, seeking to execute on personal property or garnish bank accounts, and the judgment debtor pays the judgment in response to those coercive judgment collection methods, the payment of the judgment is not voluntary, and the judgment debtor's appeal is not waived. That scenario is possible in Virginia because judgment creditors can continue judgment collection efforts pending an appeal unless a judgment debtor posts an suspending (i.e., supersedeas) bond.
On the other hand, if a judgment debtor just writes the judgment creditor a check, that is a voluntary payment and it waives the judgment debtor's right to appeal. The question, of course, is what happened here?
How did this judgment get paid?
The answer brings us to our real estate transaction. More than a year after the judgment was entered against her, and after the wheels were in motion on her appeal, Sheehy went to sell some real estate. In Virginia, a judgment creates a lien on the judgment debtor's real estate. For a sale to close, the judgment must be paid off.
That happened here. After being contacted by the buyer's attorney, Williams' attorney received a check for the exact amount of the judgment. That check came not from Sheehy, but from the buyer's attorney.
Herein lies the issue: Although the check didn't come from Sheehy, Williams' attorney claims it had Sheehy's initials on it, indicating that Sheehy knew the judgment was being paid off and consented to it. Sheehy's counsel, on the other hand, maintains the check was issued by the buyers and not "by [Sheehy] or on her behalf." At oral argument, however, Sheehy's counsel was unable to say, in response to a question from the bench, whether Sheehy authorized the payment to be made. He had nothing to do with the real estate closing.
Where does that leave things?
How can the Court resolve Williams' motion to dismiss without any trial court record about what happened during the real estate closing, which happened more than a year after final judgment? The answer is that it can direct the trial court to make one. Under Rule 1:1B(b) of the Rules of the Supreme Court of Virginia, the Court can temporarily remand a case "to the circuit court for the purpose of making findings of fact regarding factual issues relevant to" a motion to dismiss an appeal. That is what the Court does here. It remands the case and directs the trial court to make factual findings on eight questions relevant to its consideration of whether Sheehy's appeals are barred by the voluntary payment doctrine.
In the past, I've posted about "25 Surefire Ways to Torpedo Your Virginia Supreme Court Appeal." I must admit, violating the voluntary payment doctrine by ratifying the payment of a judgment during a real estate closing (assuming that ends up being what Sheehy did here; we'll see) wasn't one I foresaw the need to include.