*This article was authored with the assistance of Summer Associate Alexa Kathol Macumber.
Alexa is pursuing her JD at the Regent University School of Law.
While most appeals do not occur until after a final order is issued by the circuit court, there are instances when an issue is so pressing that an appellate court will resolve it before the case proceeds to final judgment in the trial court. This process is called an interlocutory appeal.
Under prior law, if both parties and the court agreed that an issue warranted an interlocutory appeal, parties would petition either the Supreme Court of Virginia or the Court of Appeals of Virginia to hear their case. The Court of Appeals would hear interlocutory and final order appeals in criminal, workers’ compensation, domestic relations, and administrative law cases were submitted to the Court of Appeals. The Supreme Court would hear direct appeals of final and interlocutory orders in other civil matters from the circuit court and certain other kinds of cases, as well as appeals of rulings made by the Court of Appeals.
Recent law has removed the so-called “one-party veto.” Now, instead of there having to be unanimity amongst the parties and the court, a party need only petition the circuit court for an interlocutory appeal. If the circuit court approves the petition, then the appealing party may seek an interlocutory appeal.
And notably, after the expansion of the jurisdiction of the Court of Appeals effective January 1 2022, the Court of Appeals hears petitions for interlocutory appeal generally in both civil and criminal matters. A party may appeal the ruling to the Supreme Court of Virginia after it is decided by the Court of Appeals.
Va. Code § 8.01-675.5 and Va. R. Sup. Ct. R. 5A:12 et seq. govern the interlocutory appeal process in civil matters.
The Code explains that prior to the commencement of trial, once the circuit court has entered a pending order or decree in a civil action that is not otherwise appealable, a party may ask the circuit court to certify an order or decree for interlocutory appeal.
There are specific requirements that must be in a motion seeking certification. The motion must “include a concise analysis of the statutes, rules, or cases believed to be determinative of the issues.” Additionally, the motion
must request that the court certify in writing that the order or decree involves a question of law as to which (1) there is substantial ground for difference of opinion; (2) there is no clear, controlling precedent on point in the decisions of the Supreme Court of Virginia or the Court of Appeals of Virginia; (3) determination of the issues will be dispositive of a material aspect of the proceeding currently pending before the court; and (4) it is in the parties’ best interest to seek an interlocutory appeal.
If the request for certification is opposed by any party, the parties may brief the motion.
The appellant must file a petition for appeal with the Court of Appeals within 15 days after entry of the certification order by the circuit court asking the Court of Appeals to hear the interlocutory appeal. Va. R. Sup. Ct. 5A:12 sets forth the requirements for a petition and a filing fee of $50.00. Typically, there is no oral argument. Va. R. Sup. Ct. 5A:12(g). Appellee has 7 days after service of the petition for appeal to file its brief in opposition to the petition. The brief in opposition is required to conform to the requirements for an appellee’s brief under Va. R. Sup. Ct. 5A:21. Va. R. Sup. Ct. 5A:13. The Court of Appeals has discretion to decide whether to hear the interlocutory appeal, and, it may also expedite granting the appeal before the brief in opposition is filed.
If the Court of Appeals grants the petition, it will issue a certificate of appeal. If the petition is denied, then the case returns to the circuit court. However, the appellant may ask the panel to rehear the petition within 14 days of the date of the order. Va. R. Sup. Ct. 5A:15, 5A:15A.
If the Court of Appeals grants the petition, appellant is required to file a $500 appeal bond or irrevocable letter of credit conditioned on the payment of all damages, costs, and fees incurred on appeal within 15 days of the issuance of the certificate of appeal. Va. Code § 8.01-676.1(B). The parties then litigate the appeal under the same or similar briefing and oral argument rules that apply in appeals of right, but the certificate of appeal acts as the triggering date for appellate deadlines instead of the date on which the record is received by the Court of Appeals from the trial court.
Notably, an interlocutory appeal does not automatically stay proceedings in the trial court. Proceedings are stayed only if the circuit court or appellate court orders a stay because “(i) the petition or appeal could be dispositive of the entire civil action or (ii) there exists good cause, other than the pending petition or appeal, to stay the proceedings.” Va. Code § 8.01-675.5(C). The trial court retains concurrent jurisdiction over the case unless a stay is entered. Va. Sup. Ct. R. 1:1C(b).
It is worth noting that a party does not lose its right to appeal an issue by not seeking an interlocutory appeal. Similarly, an order denying interlocutory review will not preclude a later appeal unless the court’s order denying interlocutory review precludes a future appeal. A party who does not or unsuccessfully tries to file an interlocutory appeal can appeal the issue after a final order. Va. Code § 8.01-675.5(D).
Notably, there are some special cases in which a party can petition for interlocutory appeal without trial court certification.
First, a party may petition the Court of Appeals to appeal the circuit court’s granting, denial, dissolution of an injunction or refusal to enforce an injunction without trial court certification. The appellant must file a petition for review with the Court of Appeals within 15 days of the circuit court’s order. The appellee has seven days from the date of service of the petition to file a response. The petition shall be accompanied by a copy of the proceedings before the circuit court regarding the injunction. And the appellate court may take action it considers appropriate under the circumstances. Va. Code 8.01-626. The appellate court has exclusive jurisdiction over the appealable interlocutory order in this context, but the trial court has jurisdiction over the other parts of the case unless the trial or appellate court enters a stay saying otherwise. Va. R. Sup. Ct. 1:1C(a)
Moreover, if, before trial begins, the circuit court enters an order granting or denying a plea of sovereign, absolute, or qualified immunity that would “immunize the movant from compulsory participation in the proceeding, the order is eligible for immediate appellate review.” The party aggrieved by the order must file a petition for review with the Court of Appeals and follow the procedures for an appeal regarding injunctions set forth above. Va. Code § 8.01-675.5(B).
Although in the past the typical case before a circuit court did not involve an interlocutory appeal, this may be a more frequent practice under the new rules. Thus, litigants should be aware of this possibility and be prepared to navigate the interlocutory appeal process.