What Happens after My Appeal? A Guide for Next Steps after Your Case Is Decided by The Court of Appeals of Virginia

In the years following the General Assembly’s expansion of the Court of Appeals of Virginia’s jurisdiction to cover all civil matters and the notable expansion of a right of appeal in all cases, many litigants face the daunting prospect of having their case heard before an appellate court.  Having finished an arduous trial or painstaking motions practice before a circuit court, a litigant must put pen to paper yet again to write a brief that they will then argue before a panel of judges on Virginia’s intermediate appellate court.  Then, when all of the work before the Court of Appeals is finished, the litigant must patiently wait for the judges to craft their opinion, eagerly checking email and the Court’s website every Tuesday in anticipation for the release of a favorable opinion (the Court of Appeals typically releases its opinions every Tuesday).  When that Tuesday finally arrives, and the judges have issued the opinion, what do you do now?  Is your case finally over? Do you get to recover anything for having to go through the appeals process? If you disagree with the outcome of the case, do you get to try again? Can you continue with another appeal?  Answers to some of these questions are included below and can be found in the Rules of the Supreme Court of Virginia and Code of Virginia.

Costs

By statute, the prevailing party from an appeal is entitled to recover his or her costs that were incurred in litigating the appeal.  Code § 17.1-604.  This is an often over-looked right, and many miss this deadline to claim costs given that the prevailing party must file a notarized bill of costs with the Court of Appeals within 14 days after the Court releases its opinion.  According to Rule 5A:30, if an appeal is dismissed or affirmed, then the appellee can recover their costs.  Likewise, the appellant can recover their costs if the trial court’s judgment is reversed.  Costs may include the filing fee for the case, the costs of printing or producing the necessary briefs, and even the costs of preparing transcripts.  Rule 5A:30(c) and Code § 17.1-128.  It is important to note that the bill of costs filed with the Court of Appeals must be a notarized document that details the exact cost spent by the respective party, and it typically involves attaching receipts or invoices as evidence of those costs.

Attorneys’ fees

When a prevailing appellee was awarded their attorneys’ fees in circuit court, they could also potentially be awarded their appellate attorneys’ fees by the circuit court for prevailing on appeal.  Rule 5A:30(b)(1) and Rule 1:1A.  A motion filed under Rules 1:1A and 5A:30(b)(1) only applies to a prevailing appellee, and it must be filed in the circuit court within 30 days of the entry of judgment by the Court of Appeals. 

The Court of Appeals could also determine that a prevailing party (not just a prevailing appellee) is entitled to appellate attorneys’ fees if the party asked for their appellate attorneys’ fees in their brief.  Rule 5A:30(b)(2).  Notably, an award of attorneys’ fees by the Court of Appeals can only be requested in either the appellant’s brief or the appellee’s brief – not by a separate motion filed after the court issues its opinion.  Rule 5A:30(b)(2)(A).  The Court of Appeals, however, may still choose to remand the case back to the trial court for it to determine a reasonable amount of attorneys’ fees.

Petition for Rehearing  

Within 14 days of the Court of Appeals’ decision, the non-prevailing party has the option to file a petition for rehearing before the same three-judge panel that heard the original case.  Rule 5A:33.  A petition for rehearing would have the case heard again by the same three-judge panel that decided the original case. The petition for rehearing can also only be granted if at least one of the judges who decided the case against the non-prevailing party (i.e. one of the judges from the majority opinion or a concurring judge) votes to grant the petition.

If the petition for rehearing is granted, then the petitioner will not file another pleading.  Rule 5A:35(a).  The petitioner must rely on the brief(s) that he originally filed and the petition itself when arguing before the panel again.  The respondent may, file a response to the petition only after the panel decides to grant the petition for rehearing. 

Petition for Rehearing En Banc

Much like the petition for a panel rehearing, a petition for a rehearing en banc is a common mechanism that dissatisfied litigants may use to have their appeal heard anew.  A rehearing en banc places the case before the full court of all 17 judges – including the three who decided the original case.  Like its counterpart, the petition for rehearing en banc must be filed within 14 days of the release of the Court’s opinion.  Rule 5A:34(a).  In addition, a litigant may choose to file both a petition for rehearing en banc and a petition for rehearing at the same time, and he can even use the same pleading to do so. 

Despite the similarities between the two rehearing mechanisms, there are many significant differences as well.  For instance, the petition for rehearing en banc is voted on by all 17 judges of the Court of Appeals.  A petition for rehearing en banc is only granted by a majority vote of the Court (i.e., 9 of the 17 judges), or, if there is a dissenting opinion, by 6 of the 17 judges.  Code § 17.1-402(D)(i).  A judge of the Court of Appeals, upon his or her own motion, may move the Court to vote to rehear a case en banc if the judge believes that the opinion “is in conflict with a prior decision of the court or of any panel thereof and five other judges of the court concur in that view.”  Code § 17.1-402(D)(ii). 

The voting procedures for a petition for rehearing en banc are very favorable to a non-prevailing party who was able to convince one of the three judges to write a dissenting opinion.  With a dissent, a petition for rehearing en banc may be granted if only 6 of the 17 judges vote to grant the petition.  This practice drastically differs from the panel rehearing where, as stated above, only a judge who originally decided the case adversely to the petitioner (such as those judges in the majority) could vote to grant the petition for rehearing. 

The procedures governing the petition itself also differ (or at least have more rules) than the petition for rehearing before a panel.  The petition for rehearing en banc must still be filed within 14 days of the Court’s opinion, and the respondent may not file a responsive pleading unless authorized by the Court.  Rule 5A:34(b). 

Significantly, Rule 5A:35(b)(1) states that the only issues that can be heard en banc are those issues that were raised in the petition for rehearing en banc and are granted by the Court.  In other words, if the Court of Appeals’ decision had multiple holdings, and a petitioner only raises qualms about one of the many holdings, then the Court of Appeals can only rehear the one issue that was raised in the petition – leaving the remaining holdings undisturbed.  Rule 5A:34(b)(1).  This means that a petitioner must be extremely mindful of each ruling made by the Court of Appeals, otherwise they may be prevented from ever challenging these holdings again. 

If the petition for rehearing en banc grants a review of all of the issues addressed by the prior panel, then the case proceeds to the full court as if the prior panel’s decision never existed.  Rule 5A:35(b)(2).  There is a very common misconception about a rehearing en banc that has recently led to much confusion: when a case is reheard en banc the case is not an appeal of the panel’s decision but instead the case is heard anew as if it were appealed directly from the trial court.  Rule 5A:35(b)(2) makes clear that a rehearing en banc is treated like the original appeal straight from the trial court.  For example, Rule 5A:35(b)(2) states that the original appellant is still the appellant during en banc review – even if the appellee was the one who filed the petition for rehearing en banc.  So, if the decision is being reheard en banc, the original appellant will again file an opening brief within 21 days of the granting of the petition, the appellee will file a response brief within 14 days, and then the appellant may file a reply brief.

As part of the above-mentioned misconception, many litigants often mistakenly believe that the en banc Court is acting like the Supreme Court where the full court simply reviews the three-judge panel’s decision as if en banc review were an appeal of the prior decision.  The Supreme Court Rules (and the Court’s prior precedent), however, indicate that a rehearing en banc is simply a do-over of the case – just with 14 extra judges on the bench.  This is evidenced by the fact that the appellant may not change his or her original assignments of error from the ones that were noted in the earlier appeal.  These original assignments of error obviously must have stated that the trial court (not the Court of Appeals) made a reversable error. If a petitioner drafts new assignments of error that discuss how the three-judge panel erred, then the Court of Appeals very well may deny the petition for rehearing en banc. 

While an appellant may not substantively change their assignments of error when the case is reheard en banc, the Supreme Court has recently amended Rule 5A:35(b)(2) to state that the “appellant may not change an assignment of error from the one assigned before the panel but may seek leave of Court to make technical corrections or non-substantive changes that do not prejudice the appellee.”  See also Green v. Portfolio Recovery Assocs., LLC, 83 Va. App. 28, 48 n.11 (2024) (en banc).  Again, the appellant must stick with the same substantive assignments of error that were previously raised before the panel, but there is still room to correct typos or faulty grammar in an original assignment of error. 

Petition to Appeal to the Supreme Court

Likely the most common response of a dissatisfied litigant before the Court of Appeals is to note an appeal to the Supreme Court of Virginia and to file a petition for appeal.  Much like the time-requirements of perfecting an appeal before the Court of Appeals, a litigant appealing a decision of the Court of Appeals must meet each deadline or else the appeal will be dismissed.

To timely note an appeal to the Supreme Court, a litigant must file a notice of appeal with the Clerk of the Court of Appeals within 30 days of either the Court’s decision or the denial of a timely petition for rehearing.  Rule 5:14(a).  The same 30 day time-limit applies to the filing of the petition for appeal, and litigants often file their petition at the same time that they file their notice of appeal.  Rule 5:17(a)(2).

Much like an Opening Brief before the Court of Appeals, the petition for appeal must state the assignments of error in a separate heading.  The assignments of error in the petition may (and often will) differ from the assignments of error listed in the Opening Brief before the Court of Appeals.  Rule 5:17(c).  For instance, the new assignments of error may discuss how the Court of Appeals – rather than the trial court – made an error.  The Respondent party may also choose to file a brief in opposition to the petition for appeal, and the Respondent may even note their own assignments of error from the Court of Appeals as well.  Rule 5:18.  The Petitioner may choose to file a Reply Brief, or the Petitioner may elect to argue his petition before a panel of justices arguing why the Supreme Court should grant the petition.  Rule 5:17(j); Rule 5:19.  If the Petitioner files a Reply Brief, then they waives the right to argue orally before the panel of justices.

Unlike the Court of Appeals, the Supreme Court of Virginia does not offer an automatic right of appeal.  A dissatisfied litigant before the Court of Appeals must still file a petition asking the Supreme Court to grant review of the appeal and then, if granted, the litigant must again argue before all 7 justices of the Supreme Court.    

Conclusion

Even after the Court of Appeals issues its opinion, many appeals are still far from being finished.  A litigant may choose to petition the Court of Appeals to rehear the case by the panel or en banc, or the litigant may choose to petition for an appeal to the Supreme Court of Virginia.  In any case, these options continue to pose challenges to litigants, and it is best to rely on seasoned appellate attorneys to help guide you through the daunting process of an appeal.

Scott Ingram is a Pender & Coward attorney focusing his practice on civil litigation, construction law, and local government matters.  Prior to joining the firm, Scott served as a law clerk for the Honorable Randolph A. Beales of the Court of Appeals of Virginia.