CRITICAL UPDATE TO VA. S. CT. R. 1:1 and 1:11--FINAL JUDGMENTS AND MOTIONS TO STRIKE, "Critical Changes to Va. S. Ct. Rules 1:1 and 1:11 that Every Litigator Needs to Know.…”
Critical Changes to Va. S. Ct. Rules 1:1 and 1:11 that Every Litigator Needs to Know: How Final is the Finality of Judgments, Orders and Decrees in Your Case
Views from the Bench and Bar
By The Honorable Thomas D. Horne and Nathan Veldhuis
Effective November 1, 2018, Va. S. Ct. Rule 1:1, respecting the finality of Orders and Decrees has been amended. A retitling of Va. S. Ct. Rule 1:11 respecting Motions to Strike the Evidence also became effective on that date. While the change to Rule 1:11 does not warrant much further scrutiny, the changes to Rule 1:1 do. What follows sets out the change to Va. S. Ct. Rule 1:1, how it is a departure from prior practice, and some observations from the bar and bench on the significance of the changes.
Va. S. Ct. Rule 1:1, as amended, states the following [the italicized portions representing the changes effective November 1, 2018]:
RULE 1:1. Finality of Judgments, Orders and Decrees.
(a) Expiration of Court’s Jurisdiction. -All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer. But notwithstanding the finality of the judgment, in a criminal case the trial court may postpone execution of the sentence in order to give the accused an opportunity to apply for a writ of error and supersedeas; such postponement, however, shall not extend the time limits hereinafter prescribed for applying for a writ of error. The date of entry of any final judgment, order, or decree shall be the date it is signed by the judge either on paper or by electronic means in accord with Rule 1: 17.
(b) General Rule: Orders Deemed Final. -Unless otherwise provided by rule or statute, a judgment, order or decree is final if it disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution of the court’s judgment, order or decree.
(c) Demurrers. -An order sustaining a demurrer or sustaining a demurrer with prejudice or without leave to amend is sufficient to dispose of the claim(s) or cause(s) of action subject to the demurrer, even if the order does not expressly dismiss the claim(s) or cause(s) of action at issue. An order sustaining a demurrer and granting leave to file an amended pleading by a specific time is sufficient to dispose of the claim(s) or cause(s) of action subject to the demurrer, if the amended pleading is not filed within the specific time provided, even if the order does not expressly dismiss the claim(s) or cause(s) of action at issue.
(d) Pleas in Bar and Motions for Summary Judgment. -An order sustaining a plea in bar or sustaining a plea in bar with prejudice or without leave to amend is sufficient to dispose of a claim(s) or cause(s) of action subject to the plea in bar, as is an order granting a motion for summary judgment, even if the order does not expressly dismiss the claim(s) or cause(s) of action at issue or enter judgment for the moving party.
(e) Motions to Strike. In a civil case, an order which merely grants a motion to strike, without expressly entering summary judgment or partial summary judgment or dismissing the claim(s) or cause(s) of action at issue, is insufficient to dispose of the claim(s) or cause(s) of action at issue.
Va. S. Ct. Rule 1:11, which was formally titled “Striking the Evidence,” is now titled Motion to Strike the Evidence. The remainder of Rule 1:11 remains unchanged and provides:
If the court sustains a motion to strike the evidence of either party in a civil case being tried before a jury, or the evidence of the Commonwealth in a criminal case being so tried, then the court shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
If the court overrules a motion to strike the evidence and there is a hung jury, the moving party may renew the motion immediately after the discharge of the jury, and, if the court is of opinion that it erred in denying the motion, it shall enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
Amended Rule 1:1 reflects, in part, what has been found in the case law respecting the finality of orders. In reflecting upon the finality of orders, the Supreme Court of Virginia held that:
[g]enerally speaking, a final order for purposes of Rule 1:1 “is one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness forgiving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.” … once the twenty-one day period expired in this case without the entry of orders vacating or suspending the nonsuit orders, each action of the trial court taken thereafter was a nullity. … Because the trial court lost jurisdiction to take the actions that followed the expiration of the 21-day period after entry of the nonsuit orders, we will reverse the judgment appealed from, reinstate the nonsuit orders, and enter final judgment ….”1
While amended Rule 1:1 tracks precedent in defining finality, it makes a departure from the case law as to what language is required of the trial court to establish finality in its orders and decrees with respect to dispositive pleadings. In this regard, it is important to keep in mind two principles applicable to the entry of all orders and decrees.
First, it is a, “well established law of this Commonwealth that the circuit court speaks only through its written orders.”2 Second, that while orders and decrees are to be endorsed by counsel, the Court may modify or dispense with the endorsement requirement in its discretion. Thus, even though counsel may not have had an opportunity to review the order reflecting the action taken from the bench or letter opinion, it will still become final twenty- one days after entry.3 This would, for purposes of this commentary, include those actions taken with respect to demurrer, pleas, and motions for summary judgment.
Prior to the adoption of the amendment to Rule 1:1, it had been the long held requirement to the finality of an order sustaining a demurrer that the order provide for a dismissal of the claim.4 Under the current Rule, the action sustaining a demurrer, without more, bars further action on that claim.
Finality of the order reflecting the ultimate disposition of the case must await 21 days following the entry of the judgment or order disposing of the entire matter before the court. However, those claims that were barred by the court on demurrer, plea in bar, and summary judgment may not be revisited and are final orders 21 days after entry unless modified, vacated, or suspended within those 21 days.
The practitioner must be vigilant in reviewing orders of the Court. No longer is it necessary that the Court dismiss the claims to which the demurrer has been sustained. The inclusion of the language dismissing the claim put the parties on notice that, absent reconsideration by the court or an amendment to the pleading, the action of the court would preclude further review of the specific claim.
It is clear under the amended Rule, that a plaintiff suffering an adverse decision on their specific claim by reason of a demurrer, plea, or summary judgment, should he or she wish to have the Court revisit or reconsider its ruling must do so within 21 days of the entry of the order reflecting the adverse action.
As a practical matter, pleadings may go through several iterations or amendments during their life before the Court. Many times demurrers, pleas, and motions for summary judgment are considered by a judge on Motions Days and their disposition reflected orally from the bench and memorialized in hand- written orders drafted by the attorneys and submitted to the Court for entry. No longer will lawyers be able to assert the lack of finality to decisions by the trial court that do not specifically reflect a dismissal of the claim.
Thus, while the amended Rule constitutes a change in the way demurrers, pleas, and motions for summary judgment are considered final for purposes of final review by the trial court, in practice the impact will not be significant. However, the practitioner must scrutinize closely orders of the court to ensure a decision of the trial court does not become final without express direction that the claim(s) that are the subject of the demurrer or plea are dismissed.
Lastly, while the amended Rule requires that the granting of a motion to strike in a civil case must be accompanied by the granting of summary judgment or partial summary judgment and dismissal of the claim to dispose of the cause of action, this rule would not apply to motions to strike defensive pleadings that are found legally insufficient or to motions to dismiss. It is to be noted that Rule 1:11 has been amended to retitle the rule to make clear that Motions to Strike the Evidence are what are intended.
A View from the Bench:
The demurrer is the most often used dispositive responsive pleading. It permits the Court to review and determine the legal sufficiency of a pleading. Often a party may seek particulars of a claim or to consider other documents by way of craving oyer, motions for summary judgment or partial summary judgment, while similarly used to challenge the legal sufficiency of a pleading, typically will await the conclusion of discovery.
Most litigants will be given an opportunity to amend their pleadings to correct a defect should the demurrer be sustained and a request made to plead over.
In drafting orders reflecting the finding of the Court, the attorney should relate the sustaining of the demurrer or plea, or granting of summary judgment or partial summary judgment, to a specific count or to the nature of the allegation(s) found legally deficient.
Once the order is drafted and presented to the judge for signature, follow up to ensure when it is signed. If the matter is taken under advisement by the judge, track the progress of the order through the review process established by that court. This will naturally include the clerk’s office or chambers.
Remember, under the new rule the mere recording of the fact of sustaining of the demurrer, plea, or motion for summary judgment, without more, will be final after the passage of 21 days. Do not assume that because part of your pleading survives demurrer or plea in bar that there is not finality to the count found insufficient as a matter of law.
Finally, if a demurrer, plea, or summary judgment is sustained or granted, that finding alone is sufficient, without dismissing the claim, to dispose of the claim. Be attentive to the orders and follow up on cases where you seek reconsideration.
Orders granting a motion to strike are treated differently under the amendment to the Rule. If the Court merely grants a motion to strike “without expressly entering summary judgment or partial summary judgment or dismissing the claim(s) or cause(s) of action at issue, such a finding is insufficient to dispose of the claim(s) or cause(s) of action at issue.” Motions to strike the evidence are referenced in Rule 1:11. The Supreme Court appears to have related this portion of Rule 1:1 to motions to strike the evidence in civil cases.
The Supreme Court is requiring us to do our homework and carefully read the orders prepared in a case, and keep track of their progress through the Clerk’s Office and Court. If you are running out of time, request the entry of a suspending order pursuant to Rule 1:1.
Thoughts from the Bar:
The bench is correct that attorneys in Virginia will need to “do their homework and carefully read the orders prepared in every case;” and, attorneys must watch the case’s progress to ensure they know when the 21-day period begins to run. In addition, when drafting and reviewing such orders, Virginia lawyers should be mindful of the clarity of Court Opinions and Orders, in order to ascertain their finality and their potential appealability.
1. James ex rel. Duncan v. James, 263 Va. 474, 481-84, 562 S.E.2d 133, 137 -39 (2002)(citations omitted).
2. Berean Law Group, P.C. v. Cox, 259 Va. 622, 626, 528 S.E.2d 108, 111 (2000).
3. See Smith v. Stanaway, 242 Va. 286, 410 S.E.2d 610 (1991). Commercial Bank of Lynchburg v. Rucker, 2 Va. 350, 24 S.E. 388 (1896); London Virginia Mining Co. v. Moore et al., 98 Va. 256, 35 S.E. 722 (1900); Bibber v. McCreary, 194 Va. 394, 73 S.E.2d 382 (1954) (and cases cited therein).
The Honorable Thomas D. Horne (Ret.) served as a Circuit Court judge from 1982 to 2013. He currently is a mediator for the McCammon Group.
Nathan Veldhuis is a Member of Veldhuis & Bullock, PLLC in Richmond. Nathan practices in the area of plaintiff’s personal injury law, wrongful death, professional malpractice, defamation and civil rights. He is the Chair of the Litigation of the Litigation Section of the Virginia State Bar, a Member of the Virginia State Bar’s Standing Committee for Legal Ethics and a member of the Board of Governors of the Virginia Trial Lawyers Association. Nathan is also a member of the Boyd Graves Conference, an invitation only Conference of experienced lawyers and Jurists, charged with studying a wide range of issues in civil law and making recommendations to the Supreme Court of Virginia and the Virginia General Assembly.