Back in February, the Supreme Court of Virginia handed down Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010). That decision merits extended discussion. It not only offers the best treatment of preservation of error that we’ve ever seen, but it clarifies Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), thereby dispelling one of the great urban legends of the law.

The facts the case are, shall we say, unseemly. It arose out of a criminal prosecution for various offenses stemming from the defendant’s conduct in a Yahoo chat room with a police officer posing as a minor.

And it all went downhill from there.

During trial, there was a suggestion that defense counsel may have altered a set of Yahoo chat room rules, which they tried to put into evidence. The case was pending before Judge West. Defense counsel was clever enough to use the Yahoo user name “westisanazi” on one version of rules, but apparently not quite clever enough to do a plausible job of altering another version of the document.

A summary contempt proceeding ensued. Defense counsel (now defendants) objected and moved to stay the proceeding on the ground that it violated their due process rights. The trial court overruled the motion and held them in contempt.

Defense counsel appealed to the intermediate Court of Appeals, again arguing that that the trial court had violated their due process rights. The Court of Appeals held that they had failed to preserve that argument for appeal, because they’d failed to specify the relief they sought and asked only for a stay.

On appeal, the Supreme Court reversed. Writing for the Court, Justice Kinser gave a detailed explanation of the contemporaneous objection rule.

Rule 5:25 states, in relevant part, “Error will not be sustained to any ruling of the trial court . . . unless the objection was stated with reasonable certainty at the time of the ruling.” The Court explained that the purpose of the rule is to give the trial court an opportunity to rule intelligently on the question presented. It protects the trial court from appeals based upon undisclosed grounds, prevents the setting of traps on appeal, and avoids unnecessary reversals and mistrials. A specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at the proper stage of the proceedings.

To satisfy the contemporaneous objection rule, hte Court explained, a party must object at a point in the proceeding when the trial court is in a position not only to consider the asserted error, but also to rectify it. The rule is not intended to obstruct petitioners in their efforts to secure an appeal. Rather, it is intended to allow the appellate court to hear the case on the same record as the trial court.

In analyzing whether a party has satisfied rule 5:25, the Court has consistently focused on whether the trial court had an opportunity to rule intelligently on the issue. An appellate court can only determine whether or not the rulings and judgment of the trial court were correct. If an issue is not presented to the trial court, there will be no ruling on the issue, and thus no basis for appellate review.

Applying these principles, the Supreme Court found that the defendants’ motions to stay clearly covered the arguments that they presented on appeal: namely, that the circuit court improperly conducted a summary contempt proceeding and thereby violated their due process rights. The defendants objected to the circuit court’s actions and made the court aware of the grounds of their objections. Their motions afforded the trial court an opportunity to rule intelligently on the issues–as evidenced by the fact that the trial court did so.

Specifically, the circuit court stated: “I have . . . read all the papers and information submitted . . . . It appears [the] position is that this is not summary contempt but some other form of contempt. But I do not find [the] arguments persuasive.” The trial court disposed of one of the defendants’ main arguments, then held: “I do not believe that you have a substantial likelihood of prevailing on appeal and thus your request for a stay is denied.”

To reach that holding, the circuit court necessarily considered whether the defendants were entitled to a plenary hearing and was aware that winning on appeal would get them a new hearing. Thus, it documented its own awareness of the question it was called on to decide: whether a summary contempt proceeding was proper.

The Court noted that, in some circumstances, an issue may be waived on appeal if a party simply voices disagreement with the trial court’s action, without identifying the specific relief it requests. But that was not this case. In Scialdone, the purposes of rule 5:25 were met; the circuit court was given notice of the defendants’ objections, and it had the opportunity to rule intelligently on them.

That’s pretty good stuff–but it gets better: Employing a favorite tactic of appellees these days, the Commonwealth cited Nusbaum v. Berlin, which it argued compelled affirmance of the Court of Appeals’ judgment. (As appellate practitioners know, any appellee worth her salt can find something in Nusbaum that compels affirmance of the decision below.)

The Court rejected this argument. It distinguished Nusbaum on two grounds. First, Nusbaum affirmatively told the trial court that he was not asking it to reconsider its ruling. In contrast, the Scialdone defendants made no such disclaimer. Second, unlike the trial court in Nusbaum, the circuit court in Scialdone actually reached the mertis of the defendants’ objections. As a result, Nusbaum was not controlling.

The court concluded that the Court of Appeals had erred in holding that the defendants had waived their arguments. It reversed the Court of Appeals’ judgment, and remanded the case for further proceedings.

What do you need to know about Scialdone?

  • To preserve an issue for appeal, you must object contemporaneously. That is, you need to object with reasonable certainty and give the trial court an opportunity to rule intelligently on the issue while it is still in a position to take corrective action.
  • As we have long suspected, Nusbaum v. Berlin is an affirmative waiver case–not a run-of-the-mill preservation of error case. If an appellee cites Nusbaum to argue that you’ve waived an issue for appeal, cite Scialdone‘s discussion of Nusbaum, which makes it quite clear that the Court’s decision in the latter case was driven by the appellant’s affirmative waiver.
  • Please don’t call the trial judge names.

Scialdone is a terrific, scholarly opinion. It advances the law and does us all a favor by cabinning Nusbaum. Trial and appellate counsel alike should keep this opinion close at hand.