Legal Alert for Community Associations:
Community associations should take notice that Virginia recently became the final state to allow civil litigants a right to appeal a circuit court ruling. This article provides a detailed overview of these changes.
Under prior law, if a party wanted to appeal a civil judgment from a circuit court, that party had to petition the Supreme Court of Virginia to ask a writ panel of three justices and/or senior justices to have the case considered. Only if two justices on that panel agreed that the entire Court should hear the case would it be fully briefed and orally argued by both parties and ruled upon by the full court. The appellee, or non-appealing party, had the option to file a brief in opposition to the petition, but did not have to do so, and did not present oral argument unless the writ panel accepted the case. The vast majority of petitions were denied, meaning that most litigants did not have a full appeal of their case. More information about the writ panel process is available here.
As of January 1, 2022, any party may appeal a civil judgment from circuit court to the Court of Appeals of Virginia. The Court of Appeals is an intermediate-level, state-wide court, the jurisdiction of which was historically limited to only appeals of criminal, traffic, domestic relations, workers’ compensation and appeals of other administrative agency decisions. And a civil litigant will not have to ask the Court of Appeals to grant a writ allowing a full appeal of the case—there will be a full appeal of right. Therefore, cases that are appealed will be fully briefed and orally argued (unless the parties waive oral argument or the court determines it unnecessary), and the Court of Appeals will render an opinion. The losing party can then petition to the Supreme Court of Virginia using the writ panel procedure discussed in the prior paragraph.
Community associations should recognize the pros and the cons associated with the expanded jurisdiction of the Court of Appeals. On the plus side, an association will have a right to a full appeal before the Court of Appeals if it believes that a circuit court incorrectly ruled against it. However, an adverse party will also have that right.
In light of the greater litigation expense that will come with this right of appeal, community associations should understand the potential impact of this change on their budgets. As many associations may know from experience, there is already a right to appeal de novo to circuit court for cases that originate in general district court. Frequently, associations are involved in cases in general district court for collection of amounts of $25,000 or less or covenant enforcement cases in which the association seeks injunctive relief. As of January 1, 2022, after these cases are decided on appeal by the circuit court, parties will be able to appeal these rulings as of right to the Court of Appeals.
Similarly, rulings in cases that originated in circuit court (for example declaratory judgment actions, covenant enforcement actions seeking injunctive relief or specific performance, warranty cases, cases in which the amount in controversy exceeds the general district court jurisdictional limit of $25,000, or a litigant who otherwise chose to originate the case in circuit court) may also be appealed as of right to the Court of Appeals.
Thus, for a case that (i) originated in general district court, a litigant can (ii) appeal the general district court’s ruling to the circuit court, as they could before, but then, (iii) appeal the ruling of the circuit court to the Court of Appeals and have the case heard as a matter of right for a full appeal, and, if they are unhappy with the Court of Appeals ruling, (iv) petition the Supreme Court of Virginia to hear the case. Not only could this process protract an association’s litigation efforts (including collections), as it could take years for a party to exhaust appellate options, the litigation expenses could be significantly more. Associations should recognize the increased cost and risk in litigating cases.
Vandeventer Black has closely monitored these changes and evaluated the impact on our practice and clients. Our firm has experience with the complicated rules and procedures of Appellate Law, and we are prepared and available to assist community associations in understanding and navigating the profound changes that will occur with the expanded jurisdiction of the Court of Appeals in Virginia.
- Thomas Chappell is a Senior Associate with Vandeventer Black LLP. He is in the Litigation Practice Group and a core member of Community Association Law team. Before joining Vandeventer Black, Thomas clerked for the Virginia Supreme Court. Thomas is a delegate on CAI’s Virginia Legislative Action Committee.
