In Mary Washington Healthcare v. Costello, the CAV holds that a trial court certifying an issue for interlocutory appeal does not have to explicitly make the four-part finding laid out in Code § 8.01-675.5.
Code § 8.01-675.5, you will recall, requires that a would-be appellant ask the court to certify in writing that an order meets four qualifications. Within 15 days of entry of a written order granting such certification, the appellant may file a petition for appeal:
The motion shall include a concise analysis of the statutes, rules, or cases believed to be determinative of the issues and request that the court certify in writing that the order or decree involves a question of law as to which (i) there is substantial ground for difference of opinion; (ii) there is no clear, controlling precedent on point in the decisions of the Supreme Court of Virginia or the Court of Appeals of Virginia; (iii) determination of the issues will be dispositive of a material aspect of the proceeding currently pending before the court; and (iv) it is in the parties’ best interest to seek an interlocutory appeal. If the request for certification is opposed by any party, the parties may brief the motion in accordance with the Rules of Supreme Court of Virginia.
Within 15 days of the entry of an order by the circuit court granting such certification, a petition for appeal may be filed with the Court of Appeals. …
Here, the trial court’s order said, “Based on the arguments, authorities, and representations of counsel, the [m]otion to [c]erify [for interlocutory appeal] is GRANTED and, pursuant to [Code] § 8.01-675.5, the [c]ourt CERTIFIES for interlocutory appeal [p]art I [of the plea in bar order]. The transcript of the hearing on the [m]otion to [c]ertify is incorporated by reference into this order.” Despite the incorporation of a transcript, none was ever filed.
The CAV found that this language was enough to satisfy Code § 8.01-675.5, and that a transcript was unnecessary because “the order suffices.”
This holding is notable because it departs from federal practice, where simply citing the interlocutory-appeal statute does not meet the certification requirement under 28 U.S.C. 1292. Hewitt v. Joyce Beverages of Wisc., 721 F.2d 625, 627 (7th Cir. 1983). Instead, the court “should state the reasons that warrant appeal as a guide to the court of appeals.” 16 Fed. Prac. & Proc. Juris. § 3929 (3d ed.). “Merely stating that the ruling is certified ‘pursuant to section 1292(b)’ may imply that the district court concluded an interlocutory appeal was appropriate, but standing alone, it does not clearly demonstrate an actual belief that the specific statutory requirements were satisfied.” Hewitt, 721 F.2d at 627.