Supreme Court of Virginia, 2008

Dillard's, Inc. v. Judkins

Supreme Court of Virginia · Decided June 6, 2008

661 S.E.2d 487; 2008 Va. LEXIS 82; 2008 WL 2312820 (South Eastern Reporter, Second Series)

Counsel

Upon consideration of the record, briefs and argument of counsel, the Court is of opinion that these appeals should be dismissed for the appellants' failure to comply with the provisions of Rule 5:9(a)., Rule 5:9(a) provides: "No appeal shall be allowed unless, within 30 days after the entry of final judgment or other appealable order or decree, counsel for the appellant files with the clerk of the trial court a notice of appeal and at the same time mails or delivers a copy of such notice to all opposing counsel." (Emphasis added.) This rule is mandatory, not merely directory. Rule 5:5(a); Vaughn v. Vaughn, 215 Va. 328, 329, 210 S.E.2d 140, 142 (1974) (applying predecessor Rule 5:6). We have consistently required strict adherence to its terms. See, e.g., Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283-84, 568 S.E.2d 671, 673 (2002) (notice of appeal invalid because signed only by foreign counsel).

Opinion of the Court

The rule provides a thirty-day period within which a notice of appeal must be filed. That period begins to run when the order appealed from is entered by the trial court. A trial court "speaks only through its written orders," Rose v. Jaques, 268 Va. 137, 147, 597 S.E.2d 64, 70 (2004), and an order is entered when it is signed by the trial judge. Rule 1:1; Morgan v. Russrand Triangle Assocs., 270 Va. 21, 26, 613 S.E.2d 589, 591 (2005); Peyton v. Ellyson, 207 Va. 423, 430-31, 150 S.E.2d 104, 110 (1966). A notice of appeal filed outside that thirty-day period, whether before it begins to run or after it has expired, does not comply with the rule and is invalid.

Because the notices of appeal did not comply with the requirements of Rule 5:9(a), these appeals are dismissed as improvidently awarded.

This order shall be published in the Virginia Reports and shall be certified to the said circuit court.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.