VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 12th day of April, 2022.
PUBLISHED
Paul H. Lundmark, Appellant,
against Record No. 0677-21-2 Circuit Court No. CR21-299-00M
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, Russell, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish and Callins
On March 22, 2022 came the appellant, by counsel, and filed a petition requesting that the Court set
aside its March 8, 2022 order dismissing this appeal and grant a rehearing en banc on the issues raised in the
petition.
On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,
the petition for rehearing en banc is granted, the order entered herein on March 8, 2022 is vacated, and the
appeal is reinstated on the docket of the Court.
The en banc review will be limited to reconsidering the procedural dismissal of this appeal. The
request concerning merit review in the petition for rehearing is premature in light of the order entered on
March 8, 2022. Accordingly, the parties are directed to file briefs addressing the issue of whether this Court
has jurisdiction over this case.
The appellant’s brief, which may not exceed 7,000 words, must be filed within 21 days of the date of
this order. Henrico County is requested to file an answering brief, which may not exceed 7,000 words, within
14 days after the appellant’s brief has been filed. Should the appellant elect to do so, he may file a reply
brief, limited to 3,500 words, within 14 days of the date on which Henrico County’s answering brief is filed.
The Attorney General is requested to file a brief amicus curiae within 14 days after Henrico County’s
brief is filed regarding this Court’s jurisdiction in light of the procedural issues in this appeal. See Rule
5A:23(d).
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court
Deputy Clerk
VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 8th day of March, 2022.
Paul H. Lundmark, Appellant, PUBLISHED
against Record No. 0677-21-2 Circuit Court No. CR21-299-00M
Commonwealth of Virginia, Appellee.
From the Circuit Court of Henrico County
Before Judges Humphreys, Causey and Senior Judge Frank
On December 27, 2021, the Commonwealth, by counsel, filed a motion asking this Court to amend
the style of the case, to suspend the briefing schedule, and to grant the Attorney General leave to withdraw as
counsel. On December 28, 2021, we granted the motion to suspend briefing pending further order of the
Court.
By final order entered June 30, 2021, the Circuit Court of Henrico County convicted appellant of
driving under the influence. The trial court sentenced appellant to incarceration in the Henrico County jail for
a term of twelve months, but suspended execution of the sentence for three years. The final order lists
“Henrico County Ordinance 22-2 incorporating Virginia Code Section 18.2-266,” as the offense for which
appellant was convicted. The order is styled “County of Henrico vs. Paul H. Lundmark.” Similarly, the
warrant in this case cites the Henrico County ordinance, which incorporates the state statute as the offense for
which appellant was charged.
Appellant timely filed a notice of appeal in the trial court naming the Commonwealth of Virginia as
the opposing party. The notice styles the case as “Commonwealth of Virginia v. Paul H. Lundmark” and was
served on “the Commonwealth’s Attorney for the County of Henrico.” The notice of appeal lists the circuit
court docket number and the date of the final order.
Consistent with the notice of appeal, the Clerk of this Court docketed the appeal as “Paul H.
Lundmark v. Commonwealth of Virginia.” The petition for appeal named the Commonwealth as the
appellee. An assistant Commonwealth’s attorney filed a brief in opposition to the petition for appeal
addressing the merits of the case, signing the brief on behalf of the Commonwealth. No response was filed in
the name of Henrico County. On December 15, 2021, we granted appellant’s petition for appeal.
In its present motion, the Commonwealth asserts that appellant “was not tried under the Code of
Virginia, but under a Henrico County ordinance,” and that, therefore, “the appellee in the appeal is the
County of Henrico, not the Commonwealth of Virginia.” The Commonwealth states that “[w]hile the
Attorney General is vested with authority to represent the Commonwealth in criminal appeals, that authority
does not extend to matters related to violations of local ordinances” and thus seeks leave to withdraw as
counsel. See Code § 2.2-511. The Commonwealth served both appellant’s counsel and the Henrico County
Commonwealth’s Attorney with a copy of the motion.1 The Commonwealth avers that it conferred with
appellant’s counsel, who advised the Commonwealth that he does not object to the motion and “does not plan
to file a response to it.” We grant the Commonwealth’s motion to withdraw as counsel because the Attorney
General does not represent localities. See Code § 2.2-511.
The Attorney General, on behalf of the Commonwealth, further moved the Court to amend the style of
the appeal. Counsel for appellant has not filed any response to the Commonwealth’s motion or moved to
amend the style of the case. Henrico County has not filed an objection to the motion or otherwise entered any
appearance in this case.
For the Court of Appeals to have jurisdiction over a case, a timely notice of appeal must “adequately
identif[y] the case to be appealed.” Roberson v. Commonwealth, 279 Va. 396, 407 (2010) (citing
Ghameshlouy v. Commonwealth, 279 Va. 379, 390 (2010)). If the notice of appeal is “sufficient on its face to
1 The Attorney General’s certificate of service does not indicate that the Commonwealth served Henrico County with a copy of its motion, notwithstanding the Commonwealth’s position that the County is the proper party respondent.
3
identify” the conviction being appealed, this Court’s potential jurisdiction “ripen[s]” into active jurisdiction
over the specific case. Ghameshlouy, 279 Va. at 394. “To adjudicate an appeal, this Court must have
jurisdiction over the appeal itself and the indispensable parties.” Woody v. Commonwealth, 53 Va. App. 188,
199 (2008). “Where one, or both, is lacking, we cannot adjudicate the appeal.” Id. “For this Court to obtain
jurisdiction over an individual who was a party in the trial court, the party must be named in the notice of
appeal. Otherwise, we lack jurisdiction over the party.” Id. An appellate court does not look to other
documents to determine if the notice is sufficient. See Ghameshlouy, 279 Va. at 394.
Here, the notice of appeal was filed timely in the circuit court. It correctly identifies the circuit court,
the circuit court docket number, and the date of the sentencing order. The notice, however, incorrectly names
“Commonwealth of Virginia” as the prosecuting party, indicating a violation of state law.
“The controlling documents for determining what entity served as the prosecuting authority in a
criminal trial are the instrument, that is the summons, warrant, or indictment, under which the charge is
brought[,] and the orders of conviction and sentencing that conclude the trial.” Roberson, 279 Va. at 406.
Here, both the warrant and final order establish that appellant was charged and convicted under Henrico
County Ordinance § 22-2 for driving under the influence. Consequently, Henrico County, not the
Commonwealth, was the prosecuting authority. It follows that Henrico County “was the necessary party to
be identified in [the] notice of appeal as the appellee.” See id.
Appellant did not name Henrico County as a party in the appeal and instead incorrectly listed
“Commonwealth of Virginia” as the prosecuting party.
We recognize that the Supreme Court has held that a “defect in the notice of appeal that does not
touch on its timeliness or the identity of the case to be appealed is procedural only” and subject to waiver.
Nicholson v. Commonwealth, 300 Va. 17, 22 (2021) (quoting Roberson, 279 Va. at 407); Ghameshlouy, 279
Va. at 394. In Ghameshlouy, the Supreme Court found that waiver occurred when the proper party did not
object to the defect in the notice of appeal and filed a joint brief with the Commonwealth. 279 Va. at 394.
Similarly, in Nicholson, the Supreme Court held that the procedural defect was waived when the locality
4
entered a general appearance in the case and acknowledged it had received timely notice of Nicholson’s
appeal, withdrew its opposition to Nicholson’s motions, and consented to the relief she requested. Nicholson,
300 Va. at 21. In this case, however, Henrico County, an indispensable party, has not been joined in the
notice of appeal, has not entered an appearance, and has not waived the procedural defect apparent on the face
of the notice of appeal. As a result, the notice of appeal “failed to satisfy the minimum requirements to confer
jurisdiction” on this Court. See Roberson, 279 Va. at 408; see also Woody, 53 Va. App. at 193-200
(dismissing for lack of active jurisdiction because the notice of appeal did not name the prosecuting party).
Therefore, we deny the Commonwealth’s motion to amend the style of the case because no proper party has
requested that action.2
2 The dissent focuses on the holding of Nicholson and concludes that, notwithstanding the style of the case, it can be sufficiently identified by the circuit court’s docket number to convey active jurisdiction on this Court to decide this appeal. We do not disagree but that does not end the analysis. As noted above, “this Court must have jurisdiction over the appeal itself and the indispensable parties.” Woody, 53 Va. App. at 199. The dissent’s analysis addresses only the first part of this two-part inquiry and overlooks the holdings of Roberson, Ghameshlouy, and Woody that no appeal can be resolved without notice to all indispensable parties or a waiver of any procedural defects in notice to them. See, e.g., Roberson, 279 Va. at 408 (holding that where the notice of appeal named only the Commonwealth, this “Court did not have jurisdiction over the appeal of Roberson’s conviction for DUI under” a local ordinance); Ghameshlouy, 279 Va. at 394 (holding that “the defect in the notice of appeal in not naming the proper appellee, which otherwise would have justified dismissal of the appeal, was potentially subject to waiver” and that a waiver occurred when the City joined in the Commonwealth’s brief (emphasis added)); Woody, 53 Va. App. at 200 (holding that the failure to name an indispensable party “is a failure to transfer jurisdiction over the indispensable party from the trial court to the appellate court” (emphasis added)). There is nothing in the record or pleadings currently before us that indicate that Henrico County has been joined as a party to this appeal or has waived the clear procedural defects made by appellant in its pursuit. While the Henrico County Attorney or the Commonwealth’s Attorney acting on behalf of Henrico County could enter an appearance on behalf of Henrico County and waive any defects in the notice of appeal filed by appellant, as in the case of Johnson v. Commonwealth, ____ Va. App. ____ (Feb. 15, 2022), neither has done so and the pleadings are entirely devoid of any indication that Henrico County is a party to this appeal or has notice of it. Indeed, the brief in opposition filed by the attorney for the Commonwealth clearly indicated that it was being filed on behalf of the Commonwealth—not Henrico County. Thus, “even though we have jurisdiction over the appeal itself, we do not have jurisdiction over the County — an indispensable party.” Woody, 53 Va. App. at 200.
5
Upon further consideration, we conclude that we do not have jurisdiction over this appeal because
appellant failed to join an indispensable party. See Roberson, 279 Va. at 408; see also Woody, 53 Va. App. at
193-200. Accordingly, the appeal in this case is dismissed.3
This issue arises with such regularity4 that members of the bar may benefit from the publication
thereof, and the clerk is so directed.
___________________
Causey, J., dissenting.
This Court has jurisdiction and should consider the case on the merits because appellant timely filed
his petition and adequately identified the case to be appealed.
“In order to confer active jurisdiction on an appellate court, a notice of appeal must be timely, and it
must ‘adequately identif[y] the case to be appealed.’” Nicholson v. Commonwealth, 300 Va. 17, 22 (2021)
(quoting Roberson v. Commonwealth, 279 Va. 396, 407 (2010)). In Nicholson, the Supreme Court
“conclude[d] that [appellant’s] notice of appeal was sufficient to identify the case being appealed,” even
though “the notice of appeal incorrectly named the Commonwealth of Virginia rather than [the County]” as
3 Of course, our judgment here does not foreclose appellant from pursuing a delayed appeal of the circuit court’s judgment in this case or a petition for a writ of habeas corpus. See Code §§ 19.2-321.1 and 8.01-654.
4 The apparent reason this problem arises with such regularity is that by arrangement with the local governing body pursuant to Code § 15.2-1627(A), many Commonwealth’s Attorneys prosecute violations of local ordinances on behalf of the locality. When they do so, the trial court and counsel for both parties frequently fail to note an important distinction. The term “Commonwealth’s Attorney” is simply a commonly used shorthand term for the office formally designated by Article 7, Section 4 of the Constitution of the Commonwealth as the “attorney for the Commonwealth.” When a person holding that office, or one of their assistants, prosecutes a violation of a local ordinance, they are not acting as the attorney for the Commonwealth when they do so. Rather, the prosecutor is the attorney for the locality, in this case Henrico County. In such cases the prosecutor, counsel for the defendant, and the trial court should recognize that role clearly throughout the proceedings in the trial court and it is the responsibility of an appellant to name and notify the proper party in their pleadings on appeal. While a misnomer in doing so is not necessarily fatal to an appeal, failure to clearly join an indispensable party is.
6
the prosecuting authority, because the notice “listed [appellant’s] name, the date of the final order, the court in
which the conviction originated, and the correct docket number.” 300 Va. at 24.5
In this case, as in Nicholson, appellant incorrectly named the Commonwealth as appellee instead of
the County. Also, like Nicholson, appellant timely filed his notice of appeal. And, just as in Nicholson, the
notice was sufficient to identify the case being appealed because it stated appellant’s name and correctly
listed the date of the final order, the court in which the conviction originated, and the docket number. Thus,
active jurisdiction has been conferred upon the Court here.
This case, like many tried daily throughout the Commonwealth, is docketed, styled, and filed under
the incorrect name. In practice, when a citizen files an appeal, she does so according to the docket number.6
The citizen does not have control over the docketing or style of the case. Even here, where the parties were
represented, there were difficulties with the styling of the case name. If we cannot expect legal professionals
to easily navigate styling the case name, how can we expect the average pro se litigant to do so? In
Nicholson, this Court remanded the case with direction to “promptly determine” the parties and ordered the
style of the case to be corrected by the circuit court judge, evidencing that it is not easy for a citizen to change
the docketing style of a case. 300 Va. at 21. Doing so requires an order of the court. The Attorney General
in this case knew how difficult it is to change the style of a case and filed a motion asking this Court to enter
orders correcting the style. This Court should grant the motion to amend the style of the case.
5 Nicholson created a bright-line definition of what confers active jurisdiction for the Court of Appeals of Virginia and established four elements that “adequately identif[y]” a case for the purposes of conferring active jurisdiction on this Court. 300 Va. at 22 (alteration in original). Active jurisdiction = timely filed notice of appeal + notice of appeal “adequately identif[ies] the case.” Id. Four elements that “adequately identify” the case being appealed are: 1. appellant’s name, 2. the date of the final order, 3. the court in which the conviction originated, and 4. the correct docket number. Id. at 24.
6 “A docket number is a specific identifier for a particular case.” Nicholson, 300 Va. at 23-24 (quoting Docket Number, Black’s Law Dictionary (11th ed. 2019), which defines “docket number” as “[a] number that the court clerk assigns to a case on the court’s docket”). “A docket number is relevant in identifying the case that is being appealed.” Id. at 24.
7
The Supreme Court has made clear that “[a]ny defect in the notice of appeal that does not touch on its
timeliness or the identity of the case to be appealed is procedural only.”7 Nicholson, 300 Va. at 22 (quoting
Roberson, 279 Va. at 407). For example, in Nicholson, appellant’s act of naming the Commonwealth instead
7 In this case, however, the majority contends that Henrico County has not appeared and has not waived the procedural defect apparent on the face of the notice of appeal. As a result, the majority concludes that “the notice of appeal ‘failed to satisfy the minimum requirements to confer jurisdiction’ on this Court.” The majority asserts that the proper outcome is for us to “deny the Commonwealth’s motion to amend the style of the case because no proper party has requested that action.” The majority further “conclude[s] that we do not have jurisdiction over this appeal because appellant failed to join an indispensable party.”
The majority mistakenly concludes that such a defect deprives this Court of jurisdiction and requires us to dismiss the appeal. As discussed above,“[a]ny defect in the notice of appeal that does not touch on its timeliness or the identity of the case to be appealed is procedural only.” Nicholson, 300 Va. at 22 (emphasis added) (quoting Roberson, 279 Va. at 407). Moreover, “any error that is procedural only does not deprive this Court of active jurisdiction nor mandate dismissal of the appeal.” Houston v. City of Newport News Dep’t of Hum. Servs., No. 1456-16-1, slip op. at 5 (Va. Ct. App. July 11, 2017) (emphasis added) (citing Evans v. Commonwealth, 61 Va. App. 339, 345 (2012)). The majority “conclude[s] that we do not have jurisdiction over this appeal because appellant failed to join an indispensable party.” The Supreme Court reversed Ghameshlouy v. Commonwealth, a similarly postured case this Court had decided according to reasoning similar to what the majority applies here—that “[t]he failure to join an indispensable party is a jurisdictional defect that requires dismissal of the appeal.” 54 Va. App. 47, 51 (2009), rev’d, 279 Va. 379 (2010). Recently, the Supreme Court reiterated its position on this issue. See Nicholson, 300 Va. at 22 (quoting the same language from Ghameshlouy, 54 Va. App. at 51, and noting the reversal). The failure to join an “indispensable party” was not grounds for dismissal in Ghameshlouy and is not so in the case before us. Even if a representative for Henrico County failed to appear and waive the procedural defect, this defect remained procedural. The fact that the defect remains unwaived does not transform the defect into one that requires dismissal of a case over which we have active jurisdiction.
As the Supreme Court noted in Ghameshlouy, “[j]urisdiction is a word of many, too many, meanings.”
279 Va. at 388 (quoting Ghameshlouy, 54 Va. App. at 57). The majority seems to contend that it is dismissing this case for lack of personal jurisdiction, not lack of subject matter jurisdiction. However, the cases on which the majority bases its ruling concern subject matter jurisdiction, not personal jurisdiction. See Ghameshlouy, 279 Va. at 388-90. The Court in Ghameshlouy began its analysis by “identifying those aspects of the jurisdiction of the Court of Appeals with which we are not here concerned. First, we are not concerned with the statutory jurisdiction of the Court of Appeals to consider the subject matter of this appeal.” Id. at 389 (emphasis in original). “Nor are we concerned with whether the Court could exercise personal jurisdiction over the City[.]” Id. (emphasis added). “Rather, the issue with which we are concerned is . . . did the filing of the . . . notice of appeal cause the potential jurisdiction of the Court of Appeals over this type of appeal to ripen into active jurisdiction over the appeal of that specific case.” Id. at 389-90 (emphasis added). “[S]ubject matter jurisdiction, perhaps best understood as the ‘potential’ jurisdiction of a court, is the authority granted to it by constitution or statute over a specified class of cases or controversies, and becomes ‘active’ jurisdiction[.]” Id. at 388 (emphasis added). Thus, in Ghameshlouy and the line of cases citing Ghameshlouy, the Court’s holdings have been based on whether this Court had subject matter jurisdiction. In that line of cases, as previously discussed, the Supreme Court has held that the presence of an “indispensable party” has no bearing on the determination of whether this Court has subject matter jurisdiction. Accordingly, the dissent does not agree with the majority’s reliance on Ghameshlouy and its progeny for its holding that the absence of an “indispensable party” deprives us of jurisdiction—personal or subject matter.
8
of the County in styling the case was a procedural defect, subject to waiver. Id. at 22, 24. The Supreme
Court went on to explain that when the County “entered a general appearance,” it “waived any defect
associated with a failure to notify the County” or name the proper party. Id. at 24. We applied this holding in
Johnson v. Commonwealth, ____ Va. App. ____ (Feb. 15, 2022). In Johnson, like in this case and like in
Nicholson, the case name was styled incorrectly. In Johnson, we found that this incorrect styling of the case
name was a procedural defect. Employing the holding from Nicholson, we concluded that this procedural
defect was waived because “the proper party,” the “City Attorney,” “entered a general appearance and
requested that the Court amend the style of the case.” We therefore granted the City’s motion to amend the
style of the case to reflect that the City is the proper appellee. We declined to dismiss the case and instead
reinstated the previously suspended briefing schedule, permitting the parties to proceed to the merits of the
case.
In this case, Henrico County did make an appearance and thus waived the procedural defect caused by
the incorrect case styling. The County was represented by the Henrico County Commonwealth Attorney’s
office. Eduardo L. Lopez, Esq., was the assistant Commonwealth’s attorney for Henrico County who
prosecuted this case for the County of Henrico in the circuit court. He filed the brief in opposition to the
petition for appeal in this Court, addressing the merits of the case. Additionally, the version of Code
§ 15.2-1627 in place at the time of appeal stated:
A. No attorney for the Commonwealth, or assistant attorney for the Commonwealth, shall be required to carry out any duties as a part of his office in civil matters of advising the governing body and all boards, departments, agencies, officials and employees of his county or city; of drafting or preparing county or city ordinances; of defending or bringing actions in which the county or city, or any of its boards, departments or agencies, or officials and employees thereof, shall be a party; or in any other manner of advising or representing the county or city, its boards, departments, agencies, officials and employees, except in matters involving the enforcement of the criminal law within the county or city.
B. The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all
9
warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of §[§] 18.2-268.3, 29.1-738.2, 46.2-341.20:7, or 46.2-341.26:3.
(Emphasis added).
The version of the statute that took effect on January 1, 2022, includes the following clause at the end
of subsection (B):
He may, in his discretion, file a notice of appeal with the circuit court for the appeal of a criminal case for which he was the prosecuting attorney and he may appear and represent the Commonwealth in any criminal case on appeal before the Court of Appeals or the Supreme Court for which he was the prosecuting attorney, provided that the Attorney General consented to such appearance pursuant to § 2.2-511.
(Emphasis added).
Although Mr. Lopez signed the brief in opposition to the appeal on behalf of the Commonwealth,
many of the court documents in this case, including exhibits, court reporter’s transcripts, briefs filed, motions,
and clerk’s dockets, style the case as Commonwealth v. Lundmark. The error in the styling of the name even
extends to the website case information and orders entered and signed by the trial judge. Despite this error,
the circuit court recognized Henrico County as a party present in the case. As such, the majority cannot
reasonably assert that there is “nothing in the record or pleadings currently before us that indicate that
Henrico County has been joined as a party to this appeal or has waived the clear procedural defects.” Further,
even if Mr. Lopez intended to represent the Commonwealth when he filed the brief opposing the petition for
appeal, basic ethical principles prohibit the representation of separate and potentially adversarial parties.
Mr. Lopez could not have entered an appearance on behalf of Henrico County and represented the
Commonwealth because doing so presented a conflict of interest. It is quite apparent that Mr. Lopez, in his
ongoing representation of Henrico County, simply signed the brief as he had throughout the circuit court
proceedings—according to the way the case was styled. In doing so, he entered a general appearance in this
10
Court on behalf of Henrico County, and the same parties who had notice and were present for the case in
circuit court are present here.
Additionally, the fact that the Attorney General somehow became involved in this appeal and remains
listed as the attorney of record for the appellee has little bearing on whether the County entered an
appearance. The Attorney General served the Commonwealth’s attorney for the County of Henrico with
notice of its motions to withdraw from this case and change the style of the case. Mr. Lopez did not object to
either motion or file a motion, on behalf of the Commonwealth’s attorney for the County of Henrico, to
withdraw from representing Henrico County. I find no evidence to support the majority’s theory that an
indispensable party is not present. Thus, like the appellees in Johnson and in Nicholson, the appellee has
waived the procedural defect.
All of the appropriate parties to this action have been given proper notice of appeal. Two attorneys
from two different offices have made an appearance on behalf of the appellee. The Attorney General purports
that, by statute, it is not permitted to represent localities regarding violations of local ordinances. The
Commonwealth’s attorney for the County of Henrico received the notice of the appeal on behalf of the
Commonwealth and signed the brief in opposition to the petition for appeal. Both offices effectively have
notice of the appeal, made an appearance, and waived the defect caused by the misstyling of the case name.
The majority cannot assert that “the pleadings are entirely devoid of any indication that Henrico County . . .
has notice of [this appeal].” This case is not like a civil case between two natural persons, where the
indispensable party doctrine normally applies. Rather, one of the parties in this case is Henrico County. The
County is not a natural person who has been unaware of the appeal of this case. The Commonwealth’s
attorney for the County of Henrico has notice of the appeal of this case. Therefore, Henrico County also has
notice of the appeal of this case. There is no “County”—no other entity—who also needs to be informed
about the appeal of the case.
The Supreme Court of Virginia has “repeatedly stated, [that] ‘no litigant . . . will be permitted to
approbate and reprobate—to invite error . . . and then to take advantage of the situation created by his own
11
wrong.’” Garlock Sealing Techs., LLC v. Little, 270 Va. 381, 388 (2005) (alteration in original) (quoting
Cohn v. Knowledge Connections, Inc., 266 Va. 362, 367 (2003)); see also In re Commonwealth, 278 Va. 1,
12-13 (2009) (concluding that the Commonwealth was not “allowed to approbate and reprobate” by taking
inconsistent positions in two related but different cases, a criminal proceeding and a mandamus action). We
should not permit the Commonwealth to take inconsistent positions in similarly postured cases as it attempts
to do here and in Nunez v. Commonwealth, Record No. 0008-21-4, which recently came before this Court for
oral argument. The same Assistant Attorney General, Ken Baldassari, who filed the motion to withdraw from
representing the Commonwealth in this case, wrote the brief on behalf of the Commonwealth for Nunez. In
his brief for Nunez, Mr. Baldassari included a footnote asserting that, even though, like in this case, the
defendant was convicted of violating a local ordinance and the Commonwealth, rather than the County, was
named as the appellee in the notice of appeal, this Court has active jurisdiction over the case.8
8 The Attorney General included the following footnote in his brief for Nunez:
The warrant in this case references a violation of “82-1-6/18.2-266/18.2-270.” (JA 1). Fairfax County Code § 82-1-6 adopts and incorporates Code §§ 18.2-266 and 18.2-270 by reference. But the final conviction order entered by the Fairfax County Circuit Court styled the case as “Commonwealth of Virginia versus Dominic Alex Nunez.” (JA 6–7). “A court speaks only through its orders.” Richardson v. Commonwealth, 67 Va. App. 436, 446, 796 S.E.2d 854, 859 (2017) (quoting Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964)). Compare Ghameshlouy v. Commonwealth, 279 Va. 379, 385, 689 S.E.2d 698, 700 (2010) (stating “[a]n order of conviction for violation of [Virginia Beach City Code] § 23-7.1, styled ‘CITY v. ERIC AMIR GHAMESHLOUY,’ was entered on July 30, 2007”). The final order does not reference a specific code section within, but states Nunez was found guilty of “DRIVING WHILE INTOXICATED, FIRST OFFENSE, BAC. 15-.20%, as charged in the warrant.” (JA 6–7). The “Abstract of Conviction” includes the following notation: “STATUTE: 82-1-6 (18.2-266; 18.2-270).” (JA 7). Rule 5A:6 “requires the notice of appeal to identify the case being appealed.” Evans v. Commonwealth, 61 Va. App. 339, 341, 735 S.E.2d 252, 252 (2012). More recently, though, the Supreme Court of Virginia held that a notice of appeal which incorrectly named the Commonwealth of Virginia, rather than Albemarle County was not fatally defective, but rather was subject to waiver, as the notice sufficiently identified the case being appealed. Nicholson v. Commonwealth, 300 Va. 17, 24, 858 S.E.2d 821, 824 (2021). The Court observed the notice of appeal “listed her name, the date of the final order, the court in which the
12
Apparently, the Attorney General, when it chooses to, does represent, and has the authority to
represent, the Commonwealth in matters related to violations of local ordinances, although they state in their
motion to withdraw that “[w]hile the Attorney General is vested with authority to represent the
Commonwealth in criminal appeals, that authority does not extend to matters related to violations of local
ordinances.” Clearly, the motion to withdraw from this case was made in error because the Attorney General
represents the Commonwealth in Nunez. The Commonwealth cannot approbate and reprobate by taking
inconsistent positions in nearly factually identical cases. Both this case and Nunez involve violations of local
ordinances that incorporate Code § 18.2-266, driving while intoxicated. Both case names are misstyled, with
the Commonwealth named as the appellee instead of the relevant county. The cases are identical for all
purposes relevant to jurisdiction and should be subject to the same review.
I am especially concerned with the majority’s decision to dismiss this case because no reason to do so
has been articulated by any party. Once a case has been properly appealed, the Court does not have the
authority to sua sponte dismiss it without reason.9 The analysis of this case should turn “on the purpose
conviction originated, and the correct docket number.” Id. The Court also found that Albemarle County by entering a “general appearance” waived “any defect associated with a failure to notify the County.” Id. Similarly, Nunez provided the correct name, the date of the conviction, the court in which the conviction originated, and the correct docket number in his notice of appeal. (JA 5). The final order, though, was not actually entered until January 5, 2021, which was after Nunez had filed his notice of appeal. (JA 5–7).
Appellee Br. at 3 n.1.
9 To the extent that the majority argues that it is dismissing this case based on lack of personal jurisdiction over “the indispensable parties,” the dissent notes that other appellate courts, both federal and state, have concluded that courts should not sua sponte dismiss a case for lack of personal jurisdiction. See Pilgrim Badge & Label Corp. v. Barrios, 857 F.2d 1, 3 (1st Cir. 1988) (“[T]he caselaw appears uniform in concluding that a district court has no authority, sua sponte, to dismiss for lack of personal jurisdiction.”); Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986) (“We hold that a district court may not dismiss an action sua sponte for lack of personal jurisdiction except when a default judgment is to be entered.”); Triffin v. Se. Pa. Transp. Auth., 225 A.3d 152, 157 (N.J. Super. Ct. App. Div. 2020) (“[T]he waived defense of lack of personal jurisdiction could not be resurrected by the trial judge sua sponte[.]”); YP, LLC v. Ristich, 801 S.E.2d 80, 81 (Ga. Ct. App. 2017) (“[B]ecause [the defendant] did not raise an affirmative defense to jurisdiction, the trial court lacked authority to assert it on his behalf by sua sponte dismissing the complaint for lack of personal jurisdiction under the Long Arm Statute.”).
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behind rules governing a notice of appeal. As the Supreme Court of Virginia has made plain, these rules have
been designed to protect the appellee, not to penalize the appellant.” Carlton v. Paxton, 14 Va. App. 105, 110
(citing Avery v. Cnty. Sch. Bd., 192 Va. 329, 333 (1951)) adopted upon reh’g en banc, 15 Va. App. 265
(1992). “[T]he purpose of the notice of appeal is merely to place the opposing party on notice and to direct
the clerk to prepare the record on appeal.” LaCava v. Commonwealth, 283 Va. 465, 469 n.* (2012). It has
never been “required that a notice of appeal be precise, accurate, and correct in every detail before [an]
appellate court can acquire jurisdiction over the case in which the notice is filed.” Ghameshlouy, 279 Va. at
391. Further, “[a]s a general rule, insubstantial defects in a timely filed appeal ‘should not be fatal where no
genuine doubt exists about who is appealing, from what judgment, to which appellate court.’” Evans, 61 Va.
App. at 344 (quoting Christian v. Va. Dep’t of Soc. Servs., 45 Va. App. 310, 315 (2005)). Here, the parties
have been given notice of the appeal. To the extent there are concerns about prejudice to the appellee, it
cannot be said that Mr. Lopez, who represents Henrico County, has no notice of the appeal. There is no
genuine doubt as to the identity of the parties or the case at issue. Dismissal of this case unfairly penalizes
appellant for a procedural defect.
What is before this Court? Before this Court is a properly appealed case that should be heard on the
merits. The Commonwealth, by counsel, has filed a motion asking to amend the style of the case, suspend the
briefing schedule, and grant the Attorney General leave to withdraw as counsel. The motion to suspend the
briefing schedule was granted pending further order of this Court. The motion to amend the style of the case
should be granted as requested by counsel without objection. The correct style of the case should be Paul H.
Lundmark v. County of Henrico.
This is a criminal appeal. By statute, the Attorney General shall represent the Commonwealth in all
criminal appeals and must comply with Code § 2.2-511 regarding withdrawal. Currently, this requirement
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has not been met; therefore, the Attorney General should not be granted leave to withdraw and must comply
with Code § 2.2-511.
For the reasons stated above, I respectfully dissent.
___________________
Accordingly, this appeal is dismissed.
This order shall be certified to the trial court.
A Copy,
Teste:
A. John Vollino, Clerk
original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court
Deputy Clerk