the first assignment of error is sustained

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Saturday, September 7, 2024

CAVEAT APPELLANT

Supreme court cracks down on insufficient assignments of error.

But the dangers relating to assignments cannot be defused simply by plugging something, anything, into that section of your petition. Several very recent developments have convinced me that the Supreme Court is looking with much greater care at assignments, and dismissing appeals where the assignments aren’t satisfactory. This, in turn, leads to the arrival of some very unwelcome orders in attorneys’ incoming mail, followed by some very delicate conversations with the client, describing how the lawyer’s mistake has scuttled the appeal.

As with many of my essays, my goal here is to ensure that my readers never have to place that phone call. But here, it’s a bit more than that. Some of the rulings I’ll describe here caught me genuinely by surprise – though happily I have not received one of these orders in one of my cases – and signal the need for every appellant’s counsel to reevaluate how he or she crafts assignments. Ignore this lesson at your peril.

The Supreme Court has described the purposes of assignments in these terms:

“[A]ssignments of error serve several distinct and important functions. Their chief function is to identify those errors made by a circuit court with reasonable certainty so that this Court and opposing counsel can consider the points on which an appellant seeks a reversal of a judgment. In addition, assignments of error also enable an appellee to prepare an effective brief in opposition to the granting of an appeal, to determine which portions of the trial record should be included in the parties’ joint appendix, and to determine whether any cross-error should be assigned.” Friedline v. Commonwealth , 265 Va. 273, 278 (2003).

I have been informed that Virginia is one of only five states that continue to use what are called “binding” assignments of error, those that irreversibly restrict the scope of the appeal to the issues framed thereby. I’m told that the rest of the country has moved toward a looser standard, one that requires only a forecast of the issues to be presented on appeal. It is not my purpose here to advocate either the current Virginia approach, which puts us in a small minority of states, or a move to the majority rule; I merely want you to understand the difference, and to appreciate that we aren’t likely to change teams any time soon. Here, assignments frame the permissible appellate issues, much as initial and responsive pleadings do in trial courts. If you plead a cause of action for negligence, then the trial court won’t listen to your argument, or admit your evidence, on a breach of contract claim.

Let’s start with the relevant text from Rule 5:17(c):

Under a separate heading entitled “Assignments of Error,” the petition [for appeal] shall list the specific errors in the rulings below upon which the appellant intends to rely. Only errors assigned in the petition for appeal will be noticed by this court. Where appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to questions presented in, or to actions taken by, the Court of Appeals may be included in the petition for appeal to this court. An assignment of error which merely states that the judgment or award is contrary to the law or the evidence is not sufficient. If the petition for appeal does not contain assignments of error, the appeal will be dismissed.

Each of these sentences contains a useful lesson in its own right. The first sentence creates the requirement, and gives us the only available guidance on the level of detail required: “. . . shall list the specific errors in the rulings below . . .” (Just what the word specific means in that sentence is the subject of considerable discussion below.) The second sentence tells you that if you assign errors only to issues A, B, and C, then the court won’t consider your argument on alleged legal errors D and E. If you want the Supreme Court to consider an issue, you must list it. So far, so good.

The third sentence contains an important procedural guideline. If you’re coming from a loss in the CAV, keep in mind that the Supreme Court must address its ultimate ruling to that court, not to the trial court. That means that you have to assign error to what the Court of Appeals did, not to what the trial court did. (If you’re chicken-hearted about this, it is permissible to use the following language: “The Court of Appeals and the trial court erred in ruling that . . .”) In the fourth sentence, the rule gives us one example of an assignment that doesn’t measure up to the requirement of specificity. And the final sentence announces the death penalty for petitions that contain no assignments at all.

Unfortunately, that same death penalty awaits appellants who submit insufficient assignments. If you do include assignments of error, but they aren’t specific enough, the court will dismiss your petition for appeal, citing Rule 5:17(c). (In effect, the rule is applied as though the words, “or does not contain sufficient assignments of error,” were added.) And you don’t get a do-over; you will not be permitted to amend your assignment to make it comply with the rule (as you would have the opportunity to do in the trial court if your complaint had been impermissibly fuzzy). Your appeal simply dies, and all you can do is place two phone calls, one of which is to your client.

Of course, a direct violation of the rule has always been fatal. For example, the Commonwealth Transportation Commissioner saw one legal argument die a premature death last year, when it listed the following assignment in a condemnation appeal: “The trial court erred in failing to find that the jury commissioners’ report is contrary to the evidence at trial.” This assignment, the court ruled, directly violates the fourth sentence of the rule. CTC v. Target Corp ., 274 Va. 341, 352-53 (2007).

But in the past two weeks, I have seen at least anecdotal evidence that the court has ratcheted up its enforcement of this rule. As a result, many assignments that I would once have regarded as safe, are now insufficient in the eyes of the court. And those are the only eyes that matter. Here are some of the more recent developments:

– In late May, the Supreme Court issued an order directing an attorney who has, I understand, a substantial appellate practice, to show cause why the attorney’s privilege to practice in that court should not be suspended. The reasons behind this order are many in number but uniform in nature – the attorney has had nine appeals dismissed for procedural violations, most of those relating to assignments of error.

– On June 4, as I sat in the Supreme Court awaiting my turn to argue orally, I saw an appeal by the Commonwealth in a sexually violent predator case. The chief justice interrupted the AAG and asked her how her assignment of error was sufficient. He then read it aloud, and I think I can paraphrase it accurately here: “The trial court erred in excluding the expert testimony of Dr. John Jones.” When I heard the chief’s question, I wondered to myself what could be wrong with that assignment. After all, the lawyer seemed to “lay his finger on the error” (let’s leave aside the change in gender for the moment; I’m quoting some pretty dusty language here) by specifying the exact legal ruling that was being challenged. That’s been the standard for assignments for a long time in Virginia, going back at least to First Nat’l Bank v. William R. Trigg Co. , 106 Va. 327, 342 (1907) (quoting an 1810 New York case).

– On June 10, the court entered an order dismissing an appeal for an insufficient assignment in a legal malpractice case. In that appeal, the lone assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.” Again, this assignment specified the exact legal ruling that was being appealed, but the court found it wanting.

This last ruling made me sit bolt upright in my chair (I’m a fairly laid-back guy, so it takes a considerable stimulus to make me sit bolt upright), as I finally put the three developments together and made an unmistakable deduction. The court is getting noticeably tougher on appellants in evaluating the sufficiency of assignments, and it has done so without advance notice. Hence the title of this essay.

Vagueness is not the only assignment-related issue that gets the court’s unwelcome attention. One particularly venial sin (just ask any justice, and watch as the skin on the back of his or her neck gets red) is where an appellant, after getting a writ, tries to change the wording of the assignments. Perhaps he got some pointed questions from the writ panel, and wants to ensure that his wording is sufficient. Unfortunately, no dice. The general rule is that once you file your petition, the language of the assignment is chiseled in stone. I am aware of no exceptions to this rule. I believe you could get leave of court, if you ask for it nicely, to correct something like an obvious typographical or spelling error, but I have never seen this done. I cannot conceive that the court would ever consent to a substantive change.

This sin is venial and not mortal, by the way, because it doesn’t necessarily carry the death penalty. You can still proceed with your appeal, but you’ll be limited to the original assignment, as set forth in your petition. See, for example, Hamilton Dev. Co. v. Broad Rock Club , 248 Va. 40, 43-44 (1994). Of course, you will have alienated the court by doing this, as the justices will perceive that you’re trying to pull a fast one. The justices are all very pleasant people, but this is one sure-fire way to make them mad.

So, what’s a careful appellant to do? It would be easy to overreact, and start crafting assignments that are replete with detail – say, two pages apiece. The trouble with that is that now the assignments are taking over the brief. This kind of assignment is part of what got the appellate lawyer the show cause order last month. Two pages each is just too long.

The best advice I can give you is something I have heard recently from one of the Robes – use the valuable word because in your assignments. For example, if the appellant in the legal malpractice case had written, “The trial court erred in granting [the appellee’s] motion for summary judgment, because a material dispute of fact existed on causation,” then I sense his appeal would still retain vitality. Similarly, if the AAG in the sexually violent predator case two weeks ago had written, “The trial court erroneously ruled that the expert testimony of Dr. John Jones was speculative and therefore inadmissible,” she’d be sleeping a lot better right now, because that gives the Supreme Court the detail it needs to evaluate the issues in the appeal in something other than a vacuum.

This new development has alarmed — maybe stunned would be an equally accurate word — a number of experienced appellate attorneys, including me, so if we’re worried about it, the casual appellate practitioner had better be very concerned. My own editorial comment is that I regard this as a very unfortunate trend, among other reasons because it’s always best to have decisions made on the merits instead of based on technical rules violations. In addition, those who follow the court only casually may well chalk this up to a common misperception that the justices look for any excuse they can find in order to dunk as many cases as possible, purely to cut down on their workload. (That perception, from everything I’ve been able to discern, is completely incorrect.) But the court has the right to interpret its rules as it sees fit, and it is not wrong to view this kind of defect in terms of the court’s very jurisdiction. And that, you will readily understand, is something the court will never take lightly.

Postscript – June 19

I have learned that the language in the assignment of error in the legal malpractice case described above is virtually indistinguishable from the assignment in the successful appeal of Shutler v. Augusta Heath Care , 272 Va. 87 (2006). Two years ago, the Supreme Court granted Shutler’s petition based on the following single assignment of error:

“The trial court erred in granting the defendant’s motion for summary judgment.”

There is, you will readily discern, no meaningful difference between these two assignments. But the Shutler assignment led to a reversal, while the one in the legal malpractice claim led to a dismissal. I cannot explain to you the reasons for the court’s collective change of heart, but I emphatically can warn you about it, so you won’t suffer the same fate.

32 CFR § 150.15 - Assignments of error and briefs.

(a) General provisions. Appellate counsel for the accused may file an assignment of error if any are to be alleged, setting forth separately each error asserted. The assignment of errors should be included in a brief for the accused in the format set forth in Appendix B to this part. An original of all assignments of error and briefs, and as many additional copies as shall be prescribed by the Court, shall be submitted. Briefs and assignments of errors shall be typed or printed, double-spaced on white paper, and securely fastened at the top. All references to matters contained in the record shall show record page numbers and any exhibit designations. A brief on behalf of the government shall be of like character as that prescribed for the accused.

(b) Time for filing and number of briefs. Any brief for an accused shall be filed within 60 days after appellate counsel has been notified of the receipt of the record in the Office of the Judge Advocate General. If the Judge Advocate General has directed appellate government counsel to represent the United States, such counsel shall file an answer on behalf of the government within 30 days after any brief and assignment of errors has been filed on behalf of an accused. Appellate counsel for an accused may file a reply brief no later than 7 days after the filing of a response brief on behalf of the government. If no brief is filed on behalf of an accused, a brief on behalf of the government may be filed within 30 days after expiration of the time allowed for the filing of a brief on behalf of the accused.

(c) Appendix. The brief of either party may include an appendix. If an unpublished opinion is cited in the brief, a copy shall be attached in an appendix. The appendix may also include extracts of statutes, rules, or regulations. A motion must be filed under § 150.23 , infra, to attach any other matter.

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assignment of error

Legal Definition of assignment of error

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assignment for the benefit of creditors

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“Assignment of error.” Merriam-Webster.com Legal Dictionary , Merriam-Webster, https://www.merriam-webster.com/legal/assignment%20of%20error. Accessed 7 Sep. 2024.

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Assignment Of Errors

A statement by the appellant of the errors alleged to have been committed in the lower court is an assignment of errors, a type of appellate PLEADING used to point out to the appellate court the grounds for review. It controls the scope of an appeal because if a ground for review is not contained in it, it will not ordinarily be considered by the court. The assignment of errors is usually part of the notice of appeal, the bill of exceptions, the transcript of the record, or the brief, although in some jurisdictions, it is a separate document.

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Rule 374. Assignments of Error (Mar1941)

The motion for new trial, when required to be filed under these rules, shall constitute the assignments of error on appeal or writ of error. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required, shall be considered as waived. Complaint of the action of the court on all matters arising under circumstances where no motion for new trial is required by these rules, if relied upon on appeal, shall be included in' the statement of points in the brief as hereinafter provided, and in such cases no assignments of error shall be necessary.

Amended by order of March 31, 1941, eff. Sept. 1, 1941: The period at the conclusion of the original rule has been changed to a comma, and at the end of the original rule have been added the words, "and in such cases no assignments of error shall be necessary."

ADVISORY OPINIONS

(No. 94) Question: What are the requisites of the "points" in appellant's brief? Answer: Quotations from Rule 418 and one of its appended notes, from an opinion of the Supreme Court clearly state and explain the requisites. The pertinent part of Subdivision (b) of Rule 418 reads: "Such points will be sufficient if they direct the attention of the court to the error relied upon and they should ordinarily be so concisely stated that they may appear, separately numbered, on a single page of the brief. Assignments of error need' not be copied in the brief, and may be cited by reference only.” Assignments of error are thus only referred to in the brief. They are not to be confused with "points" which are to be set out in the brief. Upon the subject of assignments of error see Rule 374 and compare Rules 324 and 325. A note appended to Rule 418 reads: "The ‘points’ provided for are not to be formal propositions, but brief expressions of the questions involved in the appeal. For example, ‘First Point: The error of the court in refusing to charge upon the issue of appellant's liability under the family purpose doctrine. Germane to Assignment of Error No. 4, Transcript p. 38.’” In Fambrough v. Wagley , 140 Tex. 577, 169 S.W.2d 478 (1943), the Supreme Court, in disagreeing with expressions in the opinion of the Court of Civil Appeals upon this subject, said: "Our present briefing rules were adopted for the purpose of simplifying the briefing of cases so that greater attention will be devoted to the presentation of the merits of the appeal, and less attention given to the mechanics of the brief. The object of a 'point' in the brief, as provided for in Rule 418, is to call the Court's attention to the questions raised and discussed in the brief. It is intended that the 'point' shall be short or in few words. It is not necessary that a 'point' be complete within itself, in the sense that it must, on its face, show that the matter complained of presents reversible error. If a 'point' is sufficient to direct the Court's attention to the matter complained of, the Court will look to the 'point' and the statement and argument thereunder to determine question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the 'point' in 'the light of the statement and argument thereunder." See also to the same effect Federal Underwriters Exch. v. Lynch , 140 Tex. 516, 168 S.W.2d 653 (1943). 6 Tex. B.J. 142 (1943) reprinted in 8 Tex. B.J. 34 (1945). (No. 112) Question: In a jury-tried case in the county court if a material special issue is not answered by the jury, and judgment is rendered for one of the parties, should there be a reversal as in Headstream v. Mangum , 174 S.W.2d 496 (Tex. Civ. App.-Amarillo 1943), by reason of the fact that the failure of the jury to answer such special issue is fundamental error? Answer: We are of the opinion that the question should be answered in the negative because Rule 324 requires complaints of this sort to be made grounds of the motion for new trial. As we construe the opinion, this procedure was omitted in the trial court in the cited case. If it should be that a ground or grounds of the motion for new trial presented this complaint, there would be no need to resort to fundamental error in order to supply the contention in the appellate court, since under Rule 374 the grounds of the motion for new trial in a case like this constitute the assignments of error. We do not undertake to answer questions in pending cases, but are informed that the above case has been completed. 7 Tex. B.J. 15 (1944) reprinted in 8 Tex. B.J. 41 (1945). (No. 114) Question: Does the opinion of the Supreme Court in Jones v. Ross , 141 Tex. 415, 173 S.W.2d 1022 (1943), adversely affect the abolition of the general demurrer and the provisions for ready amendment of defects of appellate procedure under the Rules of Civil Procedure? Answer: We think that it does not. In the case referred to, plaintiff's petition in the trial court averred an untenable basis of recovery, defendant's general demurrer was sustained, plaintiff refused to amend, and the suit was consequently dismissed. On appeal the Court of. Civil Appeals reversed, because in its opinion the petition stated a cause of action. The Supreme Court held that the sustaining of a general demurrer was error, under Rule 90, but that it could not reverse the judgment of the district court for such error "because the appellant presented this case to the Court of Civil Appeals on assignments that confined that court to law questions which test the sufficiency of the petition in the district court as against a general demurrer" and because the petition showed that there was no cause of action; and it accordingly reversed judgment of the Court of Civil Appeals and affirmed that of the district court. Motion for rehearing was overruled. Rule 90 requires that general demurrers shall not be used but that in contested litigation all faults of pleading are waived unless specifically pointed out. A want of cause of action or the failure to state one may be raised but if so, it must be raised specifically in order that the court and also the pleader may proceed with notice of the fault and that amendment may be effected. Rules 90 and 66. If a general demurrer is urged, the court at the instance of the opposite party or on its own motion should not sustain it but should strike or overrule it or require it to be reworded. Rules 68, 90. By sustaining the general demurrer the trial court therefore commits error. The question then arises whether the error is reversible. The court in the present decision answers in the negative, apparently because the appellant did not, on appeal, assign error or, complain as to the improper act of the trial court in considering and sustaining a general demurrer. But the opinion impliedly shows that the court was still more persuaded by the conviction that the case was considered in the manner in which the parties desired and that a correct result was reached. In the state of the record it would seem that by a general demurrer defendant obtained all of the advantage that he would have got from a special one; his demurrer was sustained; and it would seem that the plaintiff waived any objection to the generality of the demurrer by failing to point out that a general demurrer should not be used and by standing on his petition when the general demurrer was sustained. Rule 90. The defect in appellate procedure above referred to lay in appellant's failure to assign as error the action of the trial court in considering a general demurrer when a special demurrer should have been used. In most judge-tried cases, including any case tried solely on demurrer, the assignment of error is the "point" in the brief. Rules 374, 418. If there was no such point or no sufficient point in the present case and the appellant had asked leave in the Court of Civil Appeals to supply one, or if the appellate disposition had been based upon his omission or fault in briefing, leave to amend in that respect should have been granted before final disposition in such court. Rules 431, 437. But as the Supreme Court says, " ... an examination of plaintiff's brief in the Court of Civil Appeals discloses that he plants himself squarely on the proposition that as a matter of law" the case he alleged was recoverable, when it was not. So that amendment of the brief would have done the plaintiff no more good than amendment of his petition in the first instance. That is, none. And finally, the ruling of the trial court, for that reason, was not one that was calculated to cause an improper judgment, and for that reason there should have been no reversal on account of it. Rules 434 and 503. The case, from a procedural standpoint, may be summarized by an illustration. Suppose plaintiff should represent to the trial court and again to the Court of Civil Appeals that his petition showed all he could allege or prove and that he desired to stake his recovery upon it, and suppose those courts should be of the opinion that no recovery could be had in a case of that character whether amendment was had or not. The duty of the courts in such a situation would seem to be no plainer than was the duty of the Supreme Court in the present instance. The decision, we believe, enforces two underlying principles of the rules: that the trial court should reach the merits of the case before it and that the appellate court should reach the merits of the appeal. 7 Tex. B.J. 44 (1944) reprinted in 8 Tex. B.J. 41 (1945).