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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

You always remember your first time . . .

This week, the same day that I was in Norfolk presenting an argument to the Court of Appeals of Virginia, I received the mandate finalizing the decision in Monroe v. Monroe, a decision of the Supreme Court of Virginia and the first case I argued to that Court after more than a quarter of a century as a lowly servant of the seven be-robed ones. The mandate, which is the document which enforces the result of the Court's opinion, reads simply, "For reasons stated in writing and filed with the record, the Court is of the opinion that there is error in the order from which the appeal was filed. Accordingly, the circuit court’s August 31, 2021 order is vacated.

The vacated order was one that imposed a significant financial sanction on my client. The reversal of that judgment, while I had argued for it being erroneous on the merits, was for a threshold reason of procedure -- namely that the order had been entered more than 21-days after the final order and no intervening order had modified, vacated or suspended the final order. This was, in short, an order void for lack of jurisdiction under Rule 1:1.

I will give props to opposing counsel, who had several arguments as to why Rule 1:1 did not apply or that, even if it did, the appeal was not properly before the Court. I will not delve into those arguments or Justice Kelsey's thorough analysis of the most significant one, whether a "plaintiff" in a stockholder derivative suit must appeal a sanction imposed under the statutory scheme allowing such suits in his own name, rather than his derivative capacity, which at oral argument clearly was the Court's main interest and focus. Suffice to say that Justice Kelsey had a better command of the issue than I did (and, I think opposing counsel would likewise admit to being outclassed), and his treatment of it in the unanimous opinion has solved the issue for all such cases going forward.

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