06 Nov Virginia: Appeal Bonds – a Lawyer’s Setting
Virginia law protects successful wrongful death, brain injury, and other personal injury litigants by requiring defendants to file “an appeal bond or irrevocable letter or credit in the penalty of $500, or such sum as the trial court may require”. Va. Code. Ann. §8.01-676.1 (emphasis added). Significantly, the Virginia Supreme Court has pronounced that the “statutory language does not give the trial court discretion to set an appeal bond in an amount less than the judgment.” Tauber v. Commonwealth, 263 Va. 520, 545 (2002). Indeed, the Court of Appeals of Virginia repeatedly has held that there was “no legal basis on which to complain of the bond amount” and “no abuse of discretion” where the appeal bond was set higher than the amount awarded at trial, e.g., O’Connor v. O’Connor, 2003 Va. App. LEXIS 629 (2003)(“The trial court set the bond at $10,000, even though the attorneys’ fees award was $8,193.54.”); and even when the appeal bond was doubled subsequently. E.g., Jones v. Jones, 2004 Va. App. LEXIS 455 * 11-12 (2004)(“The trial court initially set the bond at $30,000 and later advised that because the proposed security for the appeal bond was real property, the property much have a value of $60,000”.).
Further, the Virginia Supreme Court consistently has held, “Bonds given on appeal to this court must be with approved surety.” E.g., Clinch Valley Lumber Corp. v. Hagan Estates, Inc., 167 Va. 1, 3-4 (1936); Brooks v. Epperson, 164 Va. 37, 41 (1935). Otherwise, a defendant’s appeal of wrongful death, brain injury or other personal injury award is subject to dismissal. 167 Va. at 4-5, 164 Va. at 41-31. Virginia Supreme Court Rules 5A:3(b), 5A:17(b) and 5:24 are not curative for a bond defect. Burns v. C.W. Wright Constr. Co., Inc., 1 Va. App. 256, 258 (1985).