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in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.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 . . .
Continue Reading More on the Contemporaneous-Objection Rule: Brandon v. Cox