The Takeaway

The transition from trial to appeal presents a minefield full of jurisdictional requirements and mandatory deadlines.  Failing to fully understand concepts like finality can lead to disaster for any trial lawyer unaccustomed to the appellate process.  If you are concerned that a trial court’s order may be final, the only safe bet is to file a timely Notice of Appeal.  Better yet, if you do not regularly practice in Virginia’s appellate courts, consult someone who does.


[1]           Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 555, 561 (2002) (emphasis added). 

[2]           Johnson v. Woodard, 281 Va. 403, 409-10 (2011).


[3]               City of Suffolk v. Lummis Gin Co., 278 Va. 270, 277 (2009).


[4]           Carrithers v. Harrah, 60 Va. App. 69, 75 (Va. Ct. App. 2012).


[5]           The Supreme Court’s unpublished order reversing and remanding the case, which does not address the finality issue discussed in this article, is J&R Enters. v. Ware Creek Real Estate Corp., 2018 Va. Unpub. LEXIS 21, 2018 WL 4786370 (Oct. 4, 2018).


[6]           Although Rules 5:9(a) and 5:5(a) permit the Court to grant an extension of the deadline for filing a Notice of Appeal, a motion seeking an extension is only timely “if filed either within the original filing deadline or within any extension period specified by the governing rule.”  Rule 5:5(e).  Thus, if the original 30-day period for filing the Notice of Appeal passed without us recognizing that the judgment order was final, we almost certainly would have had no remedy. 

Regardless, in practice, the Court grants extensions of time only under the most remarkable circumstances.  See Tharp v. Commonwealth, 211 Va. 1, 3 (1970) (announcing that the Supreme Court will only grant extensions of time for filing petitions for writs of error when denying an extension “would abridge a constitutional right”).


[7]           School Bd. of the City of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556 (1989); see also Super Fresh, 263 Va. at 563-64 (dismissing appeal as improvidently granted where Notice of Appeal was not filed within 30 days of the trial court’s final order).


[8]           Moore v. Commonwealth, 276 Va. 747, 753 (2008).

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