For years, the Supreme Court of Virginia has enforced Rule 5:25, its contemporaneous objection rule, with a rigor that has terrorized even the most careful appellants. But the Court recently handed down a gift to the folks in front of the “v” in Helms v. Manspile, 277 Va. 1, 671 S.E.2d 127 (2009), an opinion worth filing away in your appellate notebook.

Helms is the sort of adverse possession case that only a dirt lawyer could love. We’ll skip the facts, which involve fences and decades of mowing grass. At the close of evidence, the circuit court told the parties to submit written memoranda that included their closing arguments. The Helms’ memorandum argued, among other things, that they owned a disputed tract of land by adverse possession. The trial court disagreed, and entered an order ruling that they had not established their claim. The Helms’ counsel signed the order as “seen.”

The Helms appealed. The Manspiles argued that the Supreme Court should dismiss the appeal because they had not objected to the trial court’s ruling.

Citing Code Section 8.01-384, the Supreme Court held that the Helms had preserved their adverse possession argument. That statute provides that objecting once is sufficient to preserve an issue for appeal. The Court explained that, once a party has stated an objection, it will waive it only where the record affirmatively shows that the party has abandoned the objection, either expressly or through its conduct. The Court found that the Helms’ memorandum was “[c]learly” sufficient to preserve their right to appeal; the trial court was well aware of their arguments, which they neither withdrew nor waived.

The Court acknowledged Rule 5:25, but it held that Code Section 8.01-384(A) “is controlling over Rule 5:25, and we must apply the statutory provision.”

Why this decision is important:

  • Simply put, Helms makes it a little easier to appeal.
  • It expressly states that Code Section 8.01-384 is controlling over Rule 5:25, and explains that, once stated, an objection will not be waived unless withdrawn or abandoned.
  • It shows that simply endorsing an adverse order as “seen” is not enough to expressly waive an objection.

But before you rely too heavily on Helms:

  • Note that the opinion does not discuss the Court’s scarier preservation of error cases, such as Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555 (2004), which arguably make it necessary to object twice, at least in certain contexts.
  • Why not head off the whole waiver argument by endorsing adverse orders more carefully? It does not take much effort to sign an order “seen and objected to for the reasons stated in the pleadings, memoranda, at on the record at oral argument,” or to recite your objections on the face of the order. And it avoids risking an argument with some of the Court’s procedural sticklers about whether you actually objected to the trial court’s ruling but failed to make an exception (which Code Section 8.01-384 allows), or whether you mentioned an abstract principle of law but never actually objected to the ruling below. I’ve seen these discussions at writ arguments, and they aren’t pretty.