The SCV’s second waiver decision from last term, Brandon v. Cox, deals with two questions–one about the use of a motion to reconsider to preserve error (easy), and the other about applying the ends-of-justice exception to the contemporaneous-objection rule (much harder).

Brandon was a Section 8 tenant whose landlord withheld her security deposit without justification. The trial court ruled in favor of the landlord. On appeal, Brandon argued that the trial court had erred in ruling that the landlord and its management company could retain her security deposit to satisfy an alleged rent obligation of the housing authority.

The interesting question on appeal wasn’t whether that argument was right or wrong, but whether she’d properly raised it in the trial court in the first place.

There was no court reporter at trial, so Brandon prepared a written statement of facts. The written statement of facts did not contain any details about the parties’ arguments or the trial court’s rulings. Nor did the order or any written pleading from the trial.

Brandon did file a motion to reconsider advancing her appellate argument, but she didn’t request a hearing or get a ruling on the motion.

Of course, to preserve an issue for appeal, you always need to get a ruling. So why is this question even worth writing about?

Code Section 8.01-384(A), which abolishes exceptions and basically establishes that you only need to object once, provides that arguments made in writing at trial are preserved:

Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.

Brandon v. Cox presented a question of first impression: in light of this statute, does simply filing a written motion to reconsider after trial preserve an objection?

Stop me if you know the answer . . .


Justice Powell, writing for the Court, held that just filing a motion to reconsider–but not bringing it on for hearing or getting a ruling–was inadequate. “Because the purpose of Rule 5:25 is to ensure that the trial court has the opportunity to rule on an argument, the record must affirmatively demonstrate that the trial court was made aware of the argument.” Otherwise, there is no ruling by the trial court, and nothing to review on appeal.

So that was the easy question. Now for the hard one:

Justice Mims dissented. He would have applied the ends-of-justice exception to the contemporaneous-objection rule, on the ground that allowing a landlord to withhold $995 from a Section 8 tenant works a grave injustice.

Well, how about that.

Although I haven’t done formal research on the point, it’s my impression that, as a practical matter, the exception is invariably reserved for criminal cases.

In fact, when appellate geeks get together, one thing we talk about is whether the exception even exists for civil cases. After all, as the Brandon majority points out, the ends-of-justice exception has historically been applied in very limited circumstances, like where an element of a crime did not occur, or the evidence was insufficient to support a capital-murder conviction.

Notwithstanding all of the evidence to the contrary, I was a believer. I always thought that the exception applied in civil cases–but only in the most extraordinary situations (generally involving some combination of crippled children, lying corporate defendants, large-scale toxic torts, and Matthew McConaughey).

That belief put me in the minority. Even so, it’s nothing compared to where Justice Mims comes down on the issue. I probably wouldn’t have gone as far as he did in his dissent, but I appreciate and respect his reasoning.

And it shows that there may be hope for the ends-of-justice exception yet.