When is a Final Order Final?

This may seem like an easy question, and often it is. But, there are nuances, and you can get yourself into some pretty hot water if you get it wrong. 

Entry of a final order triggers three critical dates. First, the trial court loses jurisdiction over the case 21 days after entry. Second, the deadline for filing a Notice of Appeal is 30 days after entry. Third, the deadline for filing transcripts or a written statement in lieu thereof is 60 days after entry. Sometimes a case is dismissed due to a missed deadline, not because an attorney was not aware of the deadline, but because the attorney failed to recognize that an order was final. So, how do you recognize when an order is final?

“Unless otherwise provided by rule or statute,” an order is final if it “disposes of the entire matter before the court, including all claim(s) and all cause(s) of action against all parties, gives all the relief contemplated, and leaves nothing to be done by the court except the ministerial execution” of the order. Rule 1:1(b).

After a final order is entered, it “remain[s] under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” Rule 1:1(a). “Neither the filing of post-trial or post-judgment motions, nor the trial court’s taking such motions under consideration, nor the pendency of such motions on the twenty-first day after final judgment, is sufficient to toll or extend the running of the twenty-one day time period of Rule 1:1.” Super Fresh Food Markets of Virginia, Inc. v. Ruffin, 263 Va. 555, 560 (2002) (citing In re Commonwealth, Dep’t of Corrections, 222 Va. 454, 464 (1982)). “Rather, the finality of a judgment can be interrupted ‘only by the entry, within the twenty-one[-]day period, of an order modifying, vacating, or suspending the final judgment order.’” Jefferson v. Commonwealth, 298 Va. 473, 476 (2020) (quoting Super Fresh, 263 Va. at 560 (alterations in original)).

Appellate courts have hewed closely to Rule 1:1’s requirement, rejecting any attempt to interrupt the finality of an order with words other than “modify,” “vacate,” or “suspend.” Even a statement in a final order that the trial court intends to “retain jurisdiction” over a case is insufficient to stop Rule 1:1’s operation. Super Fresh, 263 Va. at 559.[1] Other statements that Virginia appellate courts have rejected as interrupting the finality of an order include:

• “[t]his suit shall remain on the docket for the Court to determine issues concerning attorney fees, costs and expenses,” City of Suffolk v. Lummis Gin Co., 278 Va. 270, 277 (2009);

• “[t]his matter is continued on the Court’s docket,” James, 263 Va. at 481;

• “this cause shall remain on the docket of this Court for further hearing,” Vokes v. Vokes, 28 Va. App. 349, 354 (1998) (emphasis in original); and

• “this cause is continued on the docket of the court to monitor…payment of attorney’s fees,” Gunning v. Gunning, No. 1140-12-1, 2013 WL 1952837, at *3 (Va. Ct. App. May 14, 2013).

Even an indication that the trial court intends to rule on a pending motion is not enough to negate a final order that disposes of the merits of the case. Carrithers v. Harrah, 60 Va. App. 69, 75 (2012) (citing City of Suffolk, 278 Va. at 277).[2] “If a trial court wishes such an order not to be a final order, it must ‘include specific language in the order rendering judgment stating that the court is retaining jurisdiction to address matters still pending before the court.’” Id. at 74-75 (quoting Johnson v. Woodard, 281 Va. 403, 409-10 (2011) (alterations adopted)).

In sum, if an order renders final judgment in a matter and is not modified, vacated, or suspended within twenty-one days of its entry, it is an appealable order as of the date of its entry. Jefferson, 298 Va. at 476 (Rule 1:1’s “twenty-one-day period itself ‘does not delay the finality of a judgment.’” (quoting Super Fresh, 263 Va. at 561)). Something else to think about: nothing bad ever came from filing a Notice of Appeal or a Notice of Filing Transcripts early. (Just make sure your Notice of Appeal comes after the trial court announces its decision. Rule 5A:6(a).)

[1] Cf. Johnson v. Woodard, 281 Va. 403 (2011). In Johnson, the Supreme Court of Virginia ruled that an order stating “for purposes of Rule 1:1, this is not a final order, in that this Court shall retain jurisdiction of this matter to consider any application for attorneys’ fees and costs” was sufficient to keep the case under the trial court’s jurisdiction. The distinction between the Johnson order and the Super Fresh order is the Johnson order’s statement that “for purposes of Rule 1:1, this is not a final order.” That statement was not an attempt to interrupt Rule 1:1’s operation. Johnson, 281 Va. at 409-10. Rather, it was a declaration that the order was not rendering final judgment, so Rule 1:1 did not apply. Id.; accord Super Fresh, 263 Va. at 561 (Rule 1:1 “is not applicable prior to the entry of a final judgment”).

[2] In Carrithers, the Court of Appeals recognized that its decisions in Alexander v. Flowers, 51 Va. App. 404 (2008) and Mina v. Mina, 45 Va. App. 215 (2005) were not consistent with Supreme Court of Virginia precedent. 60 Va. App. at 75 n.1. So, it clarified that anything in Alexander or Mina that was contrary to the principle that “[a] mere indication that the trial court intends to rule on pending motions is insufficient to negate the finality of an order rendering a final judgment,” id. at 75, “would be superseded by the Supreme Court’s opinions discussed above,” id. at 75 n.1, which included Johnson, Super Fresh, and City of Suffolk, id. at 73-75.