On backdating

I heard of a case not too long ago where someone raised a fuss about a transaction where documents were "backdated." Backdating is surely neither good nor bad in itself without more facts, such as the intent to deceive or the opposite. Dealing broadly with this topic is this interesting article published in the ABA's Business Lawyer in 2008, which you can download for free from SSRN.

On appeals from district court to circuit court

With the elimination of the Circuit Court's removal jurisdiction and the increased jurisdictional limit for actions in General District Court, it seems like more complicated cases get tried in District Court than was the case when I was a young lawyer and anything with much complexity was removed. Clients of lesser means have no choice but to fight out the case in District Court, because a losing defendant generally cannot appeal without posting a bond as required by Va. Code 16.1-107.

We have seen from time to time, for example, the circumstance where the plaintiff in District Court sues more than one defendant. What is the effect of an appeal if the plaintiff gets a judgment against one defendant but not the other? Is it possible, for example, for the plaintiff to appeal as to the one defendant but not the other? The answer in the opinions I have seen is no, the nature of the de novo review in Circuit Court means that the whole case with all parties is appealed, and the appellant must take the bitter with the sweet and face retrial as to every issue and every party. See Khan v. Washington, 74 Va. Cir. 95 (City of Alexandria Cir. Ct. 2007) ("the appropriate circuit court has appellate jurisdiction over all the parties to the pending case"); Hansen v. McFarland, 27 Va. Cir. 383 (City of Richmond Cir. Ct. 1992) ("an appeal by any party of a district court decision serves to give an appropriate circuit court appellate jurisdiction over any other party against who such an appeal is perfected"); Nanney v. Navy Car Storage, Inc., 7 Va. Cir. 397 (City of Norfolk Cir. Ct. 1969) (defendant "is entitled not only to a review of plaintiff's judgment against it but also the finding of the court in favor of the [other] defendant . . . "); Grinnell Fire Protection Systems Co. v. Sills, 3 Va. Cir. 489 (City of Alexandria Cir. Ct. 1979) (holding that the appeal from General District Court "brings the entire case and all of the defendants" before the circuit court).

Suppose the plaintiff decides the appeal was a mistake? Claims before a Circuit Court for de novo review on appeal from a District Court can be non-suited, but then can only be refiled in the same Circuit Court. Davis v. County of Fairfax, 282 Va. 23, 710 S.E.2d 466 (2011). The effect of the nonsuit would be that the district court judgment is lost, as if the case had never been filed. He can withdraw his appeal, subject to the provisions of Va. Code 16.1-106.1. Section 16.1-106.1 deals separately with appeals from general district court and from juvenile and domestic relations district court, but the gist is that the circuit court is supposed to dispose of the appeal consistent with the district court judgment.

Suppose a defendant brings the appeal? A defendant cannot take a nonsuit. “Nonsuit remains,” the Supreme Court has explained, “distinctly a weapon in the arsenal of a plaintiff.” Trout v. Commonwealth Transp. Com'r of Virginia, 241 Va. 69, 73, 400 S.E.2d 172, 174 (1991). An appellant who is not a plaintiff cannot nonsuit an appeal. See Anonymous C v. Anonymous B, Record No. 2232-09-2, 2011 WL 65957 (Va. Ct. App. Jan. 11, 2011). The defendant who appeals to Circuit Court can only seek to withdraw the appeal.