Let’s start with the punchline from Hawkins v. Town of South Hill: Merely stating an objection above your endorsement to an order is not enough to preserve the objection for appeal. You must object with reasonable certainty, giving the court a chance to rule intelligently on your issue, and the court must in fact make a ruling.
Hawkins is a FOIA case. Hawkins, a lawyer, submitted several FOIA requests to the Town. The town responded, but Hawkins believed that its responses were incomplete. So he filed a petition asking the trial court to compel the Town to produce the requested documents. FOIA allows the court to award attorney fees and costs when (1) the court finds a FOIA violation and (2) the plaintiff substantially prevails on the merits of its case.
The trial court granted FOIA petition in part, but it did not address the issue of attorney fees. Nor did it determine whether Hawkins had substantially prevailed. Just the opposite, the court asked the Town to draft an order memorializing its rulings, because the court “agreed with the Town’s position more than it did not.”
The Town moved for entry of an order, advising the court that the plaintiff “want[ed] to address the issue of attorney’s fees.” Hawkins did not oppose the Town’s motion. He endorsed the order, specifically objecting to the court’s failure to award attorney fees or hold that he was a prevailing party under FOIA.
Hawkins then appealed the court’s rulings on the merits, as well as its failure to award attorney fees or hold that he was a prevailing party. We’ll skip the merits and focus on preservation.
Justice Mann, writing for a unanimous court, reminded the parties of Rule 5:25–SCOVA’s contemporaneous-objection rule–which says: “No ruling … will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling . . ..” A party satisfies this rule when they give the trial court a chance “to rule intelligently on the issue.” If they don’t give the court that chance, then “there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal.”
Here, the trial court did not rule on on the attorney-fees or prevailing-party issues. The Supreme Court explained that this was because the court had not been given a fair chance to rule on them:
The absence of a ruling on either issue is understandable because Hawkins did not present either issue to the circuit court. He did not request fees and costs in his opposition to the Town’s demurrer, or in his response to the Towns’ log of documents. Hawkins did not raise the issue of fees at all during either of his hearings before the circuit court. Even when the Town moved for entry of a final order, Hawkins did not raise a request for fees or file any response. The only mention of fees occurred in the Town’s motion, where it stated that “[Hawkins] wants to address the issue of attorney’s fees.” Hawkins endorsed the order with objections but did not notice a hearing or request that the circuit court revise its order to address either issue. Because Hawkins failed to obtain a ruling on the prevailing party issue or the issue of attorney’s fees, we find there is no ruling to address on appeal, and consequently affirm the circuit court on both assignments.
So what are the takeaways from Hawkins?
First, the old preservation formula still holds: object while the court remains in a position to take corrective action, get a ruling, and make a record. Simply appending objections to a final order is not sufficient.
Second, if you find yourself at the end of the case with objections you’d still like to make, try a motion to reconsider. An appellate court can hardly fault you for trying that in light of Lucas v. Riverhill Poultry, Inc. Or you could follow Justice Mann’s implicit advice in Hawkins and notice a hearing and ask the court to revise its order in light of your objections. (Better yet, both. As Justice Mims used to say, “When in danger, when in doubt . . ..”)
Third, I’m sympathetic to the plaintiff in this case. His mistake is understandable and not remotely unusual. In my practice, I see cases from around the Commonwealth, and endorsement practices vary by region and by judge. I also have the general impression that more senior lawyers and judges may tend to put more stock in endorsements. But in light of Hawkins, Cashion v. Smith, and Rule 1:13, I’d give them little weight going forward.