An anonymous reader asks if Virginia’s appellate courts are ratcheting down on the use of motions to reconsider to preserve error.

Here’s the background: Traditionally, appellate counsel have used motions to reconsider to clean up the record and preserve new arguments for appeal. It was fairly normal for an appellate lawyer to be hired after a disappointing trial result, spot an issue that wasn’t properly raised, move to reconsider on that basis, lose, appeal, and then ultimately win on appeal on that exact point.

Enter Wal-Mart Stores East, LP v. State Corp. Commission, 299 Va. 57 (2020). There, after receiving an unfavorable ruling from the SCC, Walmart moved to reconsider, seeking relief that it had not previously requested.[1] The SCC denied the motion, and the Supreme Court affirmed. It explained that a motion to reconsider ordinarily asks a court to revisit a holding because it was mistaken. Walmart’s motion, by contrast, did not ask the SCC to do that; instead, it was “a request to consider for the first time something the movant had not never before specifically sought.” The Court specified that it did not “mean to suggest that the Commission had no discretion to grant the motion to reconsider.” Instead, it was reviewing the SCC’s denial for an abuse of discretion, and it concluded that denial was within the range of available choices:

We do not mean to suggest that the Commission had no discretion to grant the motion to reconsider. It did. See 5 VAC § 5-20-120(C) (authorizing the Commission to “accept, modify, or reject the hearing examiner’s recommendations in any manner consistent with law and the evidence”). HN15 We review the Commission’s decision to deny the motion to reconsider under an abuse-of-discretion standard. “The abuse of discretion standard draws a line — or rather, demarcates a region — between the unsupportable and the merely mistaken, between the legal error . . . that a reviewing court may always correct, and the simple disagreement that, on this standard, it may not.” Reyes v. Commonwealth, 297 Va. 133, 139, 823 S.E.2d 243 (2019) (citation omitted). “Only when reasonable jurists could not differ can we say an abuse of discretion has occurred,” Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493 (2016) (citation omitted), because only then does a discretionary decision exceed the “outermost limits of the range of choice available,” Reyes, 297 Va. at 140. Viewed under this deferential standard, the Commission did not abuse its discretion in denying Walmart’s motion to reconsider.

In other words, Wal-Mart held that requesting new relief is a permissible basis for denying a motion to reconsider. Wal-Mart did not say that this mandated denial. In fact, the Court bent over backwards to clarify that it didn’t.

And all that’s fair enough. “You didn’t ask for it until now, so you lose” is a little harsh but hardly beyond the scope of the SCC’s discretion.

The trouble comes in how Wal-Mart has been cited. Let’s see what the Supreme Court did with it in Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 95 (2021)

. . . Wal-Mart Stores, 299 Va. at 76-77 (concluding that a motion for reconsideration “may . . . challenge a tribunal’s failure to rule on an issue properly presented to it, particularly a timely but unadjudicated lesser-included claim,” but that it may not “request to consider for the first time something the movant had never before specifically sought”).
Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 95

Nope. That’s not what Wal-Mart said.

Has the Court of Appeals done any better? Let’s look at Page v. Portsmouth Redevelopment & Housing Auth., 2023 Va. App. LEXIS 407, *10 n.5 (June 20, 2023):

“A motion to reconsider ordinarily asks a court to reconsider a holding because, in the opinion of the movant, the holding was erroneous.” Wal-Mart Stores E., LP v. State Corp. Comm’n, 299 Va. 57, 76, 844 S.E.2d 676 (2020). A motion to reconsider may not “request [the circuit court] to consider for the first time something the movant had never before specifically sought.” See id. (holding that the SCC did not abuse its discretion in denying Walmart’s motion to reconsider because “Walmart’s motion . . . did not ask the Commission to reconsider its holding denying Walmart’s request for permission to aggregate the load of a specific number of customers” but instead, “Walmart argued that the Commission should consider whether authorizing some load less than Walmart requested in its Aggregation Petitions would satisfy Code § 56-577(A)(4)” (internal quotation marks omitted)).

Closer, but that’s still not quite it.

Let’s hope that some of our robed friends clean this up before we mis-cite our way out of a key tool for preserving error.

[1] More precisely, when the SCC denied Walmart’s requests to aggregate the loads of a specific number of customers (Walmart’s petitions sought to aggregate 120 customers totaling 70.52 megawatts of load and 44 customers totaling 20.57 megawatts of load), Walmart moved to reconsider, arguing that the SCC should take into account whether authorizing some load less than Walmart had requested in its aggregation petitions would satisfy Code Section 56-577(A)(4). Glad we could clear that up.