Litigation Procedure and Law - § 8-1 (I) - § 8-1 (J)

(I) Dismissal/Waiver

2016---McGeorge v. McGeorge, Va. Ct. of Appeals, Unpublished, No. 0413-16-2
The Court of Appeals dismissed the portion of Husband’s appeal regarding the trial court’s contempt sanctions against Husband’s counsel because the proper party-appellant was Husband’s counsel, not Husband.

2015---Bajgain v. Bajgain, 64 Va. App. 439
When the Court of Appeals dismisses an appeal on grounds that it lacks subject matter jurisdiction because the order appealed from was neither a final order nor an interlocutory order dealing the chief objects of a suit, the dismissal is without prejudice and does not bar a later appeal, upon entry of a final order.

2014---Kirschmann v. Kirschmann, Va. Ct. of Appeals, Unpublished, No. 0754-14-1
Although the pro se appellant listed some cases in her opening brief, she failed to explain how the cases related to her assignments of error. The appellant had the burden of showing that reversible error was committed. The Virginia Court of Appeals will not search the record for errors in order to interpret an appellant’s contention and correct deficiencies in a brief. Nor will the Court comb through the record to ferret-out the validity of an appellant’s claims. Even pro se litigants must comply with the rules of court.

2014---Loewinger v. Loewinger, Va. Ct. of Appeals, Published, No. 2383-13-4
The Court of Appeals dismissed Wife’s appeal because she named Husband’s estate, rather than Husband’s personal representative as the party in interest. Code of Virginia § 8.01-229 provides that personal actions may only be prosecuted against or defended by the decedent’s personal representative, whereas claims may be filed against the property of the estate. The statute codifies the established principle that all suits and actions in Virginia, rather than claims against property, must be prosecuted by and against living parties in either an individual or representative capacity. This principle extends to appellate proceedings. Here, Husband died after the trial court’s judgment, but before Wife noted her appeal. In her appeal, Wife assigned error to the trial court’s interpretation and application of the terms of the parties’ premarital agreement. In other words, Wife’s appeal related to a contract action against Husband, not a claim against the property of his estate. Consequently, Code § 8.01-229 required Wife to name Husband’s personal representative, not his estate, as the party in interest. Her failure to do so nullified her appeal.

2014---Wright v. Wright, Va. Ct. of Appeals, Unpublished, No. 0660-14-3
Husband’s assignment of error did not merit appellate consideration because he failed to cite any legal authority to support his argument as required by Rule 5A:20(e). Husband has the burden of showing that reversible error was committed.

2014---Burns v. Sullivan, Va. Ct. of Appeals, Unpublished, No. 0222-14-4
The Court of Appeals of Virginia summarily affirmed the trial court’s decision because the appellant failed to: 1) file a transcript or a written statement of facts in accordance with Rule 5A:8(a) of the Rules of Supreme Court of Virginia; 2) provide an appendix with her opening brief that complied with Rule 5A:25; and 3) failed to include a table of contents and table of authorities, a clear and concise statement of the facts relating to her assignments of error, and a standard of review relating to each assignment of error as required by Rule 5A:20(a), (d), and (e) respectively.

2013--Howard v. Thompson , Va. Ct. of Appeals, Unpublished, No. 2264-12-4.
Even pro se litigants must comply with the rules of court. Where a pro se party’s failure to present relevant legal authorities is significant, the Court may treat his assignment of error as waived. A party’s pro se status will also not excuse him from the burden of showing that reversible error was committee in the case. The Court will not search the record to identify possible error and correct deficiencies in the appellant’s brief.

2010---Sharp v. Sharp, Va. Ct. of Appeals, Unpublished, No. 2712-09-2
Where the Court of Appeals previously dismissed wife's appeal for failure to timely note the appeal, the doctrine of res judicata barred her subsequent appeal of the same order of the trial court.

2008---Parks v. Parks, 52 Va. App. 663
Appellant’s failure to cite any legal authority in support of her three arguments on appeal as required by Rule 5A:20(e) was “significant,” and therefore permitted the Court of Appeals to deem the questions presented as waived.

2007---Moscona v. Shenhar, 50 Va. App. 238
An appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal. This “fugitive disentitlement doctrine” applies in civil cases and criminal cases, and is valid in Virginia.

Father's appeals dismissed based upon “fugitive disentitlement doctrine,” after he refused to comply with a circuit court's orders to return to Virginia with the child, and failed to appear at the show cause hearing on his noncompliance. An appellant can not seek relief from the same judicial system whose authority he evades.

2007---Klein v. Klein, 49 Va. App. 478
Husband's appeal dismissed where, although Husband alleged in his “question presented” that the trial court erred by ruling that his evidence was insufficient to survive Wife's motion to strike, he argued on brief only that the trial court applied the incorrect standard to determine the sufficiency of the evidence. The “standard” for reviewing a plaintiff's evidence on a motion to strike is whether the plaintiff has made a prima facie case, and “sufficiency of the evidence” refers to whether evidence presented by a party meets that standard. Husband's failure to include his “incorrect standard” argument as a “question presented” dictated dismissal of the appeal on that ground, and his failure to argue on brief as to the sufficiency of his actual evidence dictated dismissal of the appeal on that ground.

2006---Jones v. Jones, 49 Va. App. 31
Wife's appeal dismissed where her attorney filed the notice of appeal while suspended from practicing law in Virginia. A pleading signed by an attorney not licensed to practice law in Virginia is invalid and has no legal effect.

(J) Preservation of Objections (Rule5A:18)

2015---Bajgain v. Bajgain, 64 Va. App. 439
Wife’s written trial memorandum in opposition to Husband’s Motion to Dismiss, and the presentation of evidence and argument in opposition to said Motion prior to the entry of an order of dismissal were sufficient to preserve objections pursuant to Rule 5A:18. Code of Virginia §8.01-384(A) provides that “[n]o party shall be deemed to have agreed to, or acquiesced in, any written order of a trial court so as to forfeit his right to contest such order on appeal except by express written agreement in his endorsement of the order.” For a waiver to occur within the meaning of Code § 8-01.384(A), the record must affirmatively show that the party who asserted an objection has abandoned the objection or has demonstrated by conduct the intent to abandon the objection.

2015---Neubert v. Neubert, Va. Ct. of Appeals, Unpublished, No. 1675-14-4
Under Rule 5A:18, the same argument must have been raised, with specificity, at trial before it can be considered on appeal. Making one specific argument on an issue does not preserve a separate legal point on the same issue for review. Here, while Husband objected to the amount of the trial court’s spousal support award, Husband did not contest the award on the basis that it was based on an uncertain future event.

2015---Everett v. Carome, 65 Va. App. 177
Husband did not fail to preserve his objection to the trial court’s ruling by willingly consenting to dismissal of his motion when Husband noted his objection on the order itself, maintained his objection clearly and consistently throughout the proceeding, and agreed to dismissal only in order to avoid the time and cost of a hearing in a court that could not grant him the relief he sought.

2015---Epps v. Epps, Va. Ct. of Appeals, Unpublished, No. 1077-14-1
Husband’s assignments of error were procedurally barred because he failed to make timely specific objections at trial as required by Rule 5A:18. The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. Additionally, a specific contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding. A general argument or abstract reference to the law is not sufficient to preserve an issue.

2014---Heffernan v. Commonwealth of Virginia, Va. Ct. of Appeals, Unpublished, No. 2103-13-4
Although the appellant failed to object to the trial court’s finding of summary contempt against the appellant, the appellant demonstrated a miscarriage of justice sufficient to apply the ends of justice exception to Rule 5A:18. The conduct that served as the basis for the appellant’s summary contempt occurred outside of the presence of the trial court. Thus, the trial court’s knowledge of the alleged conduct necessarily depended on statements made by others. Therefore, under established precedent, due process required that the appellant be accorded notice and a fair hearing.

2014---Dritselis v. Dritselis, Va. Ct. of Appeals, Unpublished, No. 0530-14-3
The Court of Appeals refused to consider Husband’s assignment of error because he failed to preserve his objections. Here, Wife provided her untimely and inadequate discovery responses at the hearing on Wife’s motion to modify her spousal support obligation. The trial court provided a thirty minute recess so that Husband could review Wife’s discovery, and then proceeded with the hearing. Although Husband objected to the inadequacy of Wife’s discovery responses at the hearing, Husband waited until the trial court’s entry of the final order to note his objections to the court’s decision to proceed with the hearing and that he did not have sufficient time to prepare for the hearing. Husband’s objections were untimely.

2014---Kirschmann v. Kirschmann, Va. Ct. of Appeals, Unpublished, No. 0754-14-1
The appellant failed to preserve her assignments of error pursuant to Rule 5A:18. Although the appellant endorsed the final order as “seen and strongly object,” she failed to file any post-trial motions. Additionally, although the appellant alleged that she preserved her objections in her statement of facts, the circuit court redacted the majority of the statement of facts pursuant to Rule 5A:8(d), which authorizes circuit courts to correct a parties’ statement of facts.

2014---Azam v. Miah, Va. Ct. of Appeals, Unpublished, No. 0884-14-2
Mother’s failure to object to the trial court’s custody modification, either at the time of the trial court’s ruling or in post-trial motions, precluded appellate review by the Virginia Court of Appeals as mandated by Rule of Supreme Court of Virginia 5A:18. The purpose of Rule 5A:18 is to provide the trial court an opportunity to correct in the trial court any error that is called to its attention.

2013-- Smith v. Smith, Va. Ct. of Appeals, Unpublished, No. 1018-13-2
A statement of “seen and objected to” is insufficient to preserve an issue for appeal unless the ruling made by the trial court is narrow enough to make the basis of the appellant’s objection obvious.

2013-- Howard v. Thompson, Va. Ct. of Appeals, Unpublished, No. 2264-12-4.
The Court will not consider an “ends of justice” argument under Rule 5A:18 sua sponte.

2013---Parsons v. Parsons, Va. Ct. of Appeals, Unpublished Opinion, Nos. 2184-12-4, 2352-12-4.
The “ends of justice” exception applies to Rule 5A:18 and objections made at trial. It does not apply to Rule 5A:20(e) and an attorney’s failure to cite to legal authorities to support an argument.

2013---Walker v. Walker, Va. Ct. of Appeals, Unpublished, No. 1616-12-2
The decision of a trial court to dispense with the endorsement of the counsel, pursuant to Rule 1:13, did not deprive the Husband of his opportunity to object to the entry of the final order. The “good cause” exception to Rule 5A:18 did not apply where the record failed to support Husband’s assertion that he did not have an opportunity to object within the twenty-one days allowed by Rule 1:1.

2013---Kolmetz v. Hitchcock, f/k/a Kolmetz, Va. Ct. of Appeals, Unpublished Opinion No. 1464-12-2.
Husband’s failure to raise the issue of the court’s authority to exercise its jurisdiction before the trial court precludes review of the issue on appeal. While a party can challenge a court’s lack of subject matter jurisdiction for the first time on appeal, a trial court’s alleged lack of authority to exercise its jurisdiction must be raised before the trial court and preserved like any other argument.

2012---Burns v. Burns, Va. Ct. of Appeals, Unpublished, No. 0359-12-4
Although the father failed to note specific objections to the trial court’s final order, he nonetheless preserved issues for appeal by filing a motion for reconsideration detailing his objections to the court’s initial findings. A hearing was held on his motion and a final order was subsequently entered. The true purpose of Rule 5A:18 requiring preservation of error is to ensure that the trial court has an opportunity to rule intelligently on a party’s objections and avoid unnecessary mistrials or reversals. Formal exceptions to rulings or orders of the court are unnecessary. (Citing Va. Code §8.01-384(A)).

2012---Moncrief v. DCSE, Va. Ct. of Appeals, No. 0051-12-2
A litigant may meet the mandates of Rule 5A:18 in different ways, including: (1) making clear his grounds for objection in a motion to strike the evidence or in a closing argument; and (2) by making the trial court aware of the legal position and not expressly waiving such arguments. Appellant made clear the grounds for his objections in his closing argument, thereby preserving his grounds for appeal.

Here, the father not only filed written pleadings with the trial court setting forth the same objections and arguments on which he appealed, but also made those grounds for objection clear in his closing argument. Despite having signed the final order as merely “seen and objected to for various reasons stated in oral argument,” father nonetheless preserved his objections in compliance with Rule 5A:18 and Va. Code § 8.01-384(A).

2012---Nelson v. Nelson, Va. Ct. of Appeals, Unpublished, No. 2386-11-4
Ordinarily, endorsement of an order “Seen and Objected to” is not specific enough to meet the requirements of Rule 5A:18 because it does not sufficiently alert the trial court to the claimed error. Such an endorsement is sufficient to satisfy Rule 5A:18 only if the ruling made by the trial court was narrow enough to make obvious the basis of appellant's objection. (Citing Herring v. Herring, 33 Va. App. 281 (2000)).

2012---Jordan v. Jordan, Va. Ct. of Appeals, Unpublished, No. 0698-11-2
Husband's argument that the trial court erred in granting wife's motion to strike before issuing a ruling on wife's assertion of privilege in her depositions was rendered waived under Rule 5A:18 because husband failed obtain a ruling from the trial court on such issue and, therefore, provided neither an adverse ruling for the appellate court to review nor a basis for his objection.

2012---Gudino v. Gudino, Va. Ct. of Appeals, Unpublished, No. 2016-11-2
As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to preserve the issue on appeal. The objection must be both specific and timely. (Citing Thomas v. Commonwealth, 44 Va. App. 741 (2005)).

The “good cause exception” to Rule 5A:18 applies when a litigant does not have the opportunity to object to an alleged error during the proceedings. It does not apply when a litigant had the opportunity to object but elected not to do so, was merely taken by surprise by the trial court's decision, or failed to obtain a ruling from a trial court on a motion or objection asserted before, during, or after trial. Nor does good cause exist when a litigant concludes an objection would be futile because the trial court had already considered the issue in dispute.

Although wife did not file her objections to the trial court's guardian ad litem fee award prior to the entry of the award, the Court of Appeals applied the “good cause” exception to Rule 5A:18. The guardian ad litem had appeared, without any written motion or notice, in a proceeding addressing support and equitable distribution to orally request an award of her fees for a related, but separate custody case. Moreover, though the trial court stated from the bench that it would not enter the order awarding fees for at least three weeks, it nonetheless entered a draft order submitted by the guardian 15 days after the guardian's appearance, thus depriving wife of an opportunity to object to the order. Furthermore, mistakes in the clerk's office regarding the labeling and filing of the order caused further delay to wife in discovering that the order had been entered. The Court of Appeals remanded for reconsideration of the guardian fee award.

2011---Barrett v. Barrett, Va. Ct. of Appeals, Unpublished, No. 0753-10-3
There is a difference between objections related and attached to a final order, and objections that are incidents of trial and must be supported by evidence in the record as to their timeliness during trial. In order for incidents of trial to be properly preserved, a written statement of facts (or the record) must reflect that objections were made, and the grounds therefore stated, when the occasion arose. The contemporaneous objection requirement of Rule 5A:18 is not satisfied when a party summarily includes his objections as part of the objections to a final order at a later date. The record, in whatever form it takes, must affirmatively reflect that any objections were made at a point in time when the trial court could properly act upon them. The mere recitation of objections in an attachment to the final order without an indication of their timeliness and without the reasons advanced to the circuit court in support of those objections does not properly preserve the issues.

2010---In Re: C.J.F. & W.R.F., Va. Ct. of Appeals, Unpublished, No. 0056-10-4 (Aug. 24, 2010)
The “ends of justice” exception to Rule 5A:18 requires an affirmative showing that a miscarriage of justice has occurred, not that a miscarriage might have occurred, (quoting Redman v. Commonwealth, 25 Va. App. 215 (1997)).

2010---White v. White, 56 Va. App. 214
Exceptions to Rule 5A:18 exist – but the Court of Appeals employs them only in rare cases, and never invokes them sua sponte.

2010---Tucker v. Wilmoth-Tucker, Va. Ct. of Appeals, Unpublished, No. 2008-09-2
Rule 5A:18 may not be invoked to bar the Court of Appeals from considering an appeal that attacks the jurisdiction of the circuit court. (Citing Jones v. Division of Child Support Enforcement ex rel. Owens, 19 Va. App. 184 (1994)).

2005---D’Ambrosio v. D’Ambrosio, 45 Va. App. 323 (2005)
To take advantage of the “ends of justice” exception to Rule 5A:18, one must “affirmatively show that a miscarriage of justice has occurred, not…that a miscarriage might have occurred.” To sustain this burden, the trial court’s error must be clear, substantial, and material.

The merits of the father’s appeal of the trial court’s injunction prohibiting him from making “defamatory comments” about Mother to third parties were heard, despite the fact that the father failed to properly preserve this issue by arguing the merits before the trial court, and failed to properly note his exception to the trial court’s issuance of the injunction. Because the injunction was unlimited in both breadth and duration, the trial court’s decision to grant it constituted “clear, substantial, and material error” to such an extent that the ends of justice required the appeal to be heard.

2004---Cirrito v. Cirrito, 44 Va. App. 287
The purpose of Rule 5A:18 is to allow the trial court to correct any error that is called to its attention. Although wife's counsel endorsed an order requiring her to produce expert reports in response to requests for admissions only as “Seen,” the Court of Appeals held that counsel's comments during the hearing and the court's subsequent responses regarding the issue were sufficient indication that wife took exception to the court's ruling. The Court of Appeals further found that Wife preserved her objection, pursuant to Rule 5A:18, to the trial court's imposition of sanctions by signing the order imposing sanctions “seen and objected to” only. The trial court's ruling was narrow enough to make obvious the basis for wife's objection.

1996--- Breeding v. Breeding, Va. Ct. of Appeals, Unpublished, No. 2238-95-3
Although husband failed to note an objection in the trial court to the entry of an order dealing with previously litigated and adjudicated child support arrearages, the Court of Appeals applied the “ends of justice” exception to Rule 5A:18 and held that res judicata barred the recalculation of previously adjudicated arrearage amounts.

1994---Smith v. Smith, 18 Va. App. 427
A motion for rehearing which is both filed and ruled upon within the twenty-one day period pursuant to Rule 1:1 is sufficient to preserve an assignment of error for appeal under Rule 5A:18.

1991---Lee v. Lee, 12 Va. App. 512
Neither the Virginia Code nor the Rules of the Supreme Court mandate a specific procedure to preserve for appeal an issue objected to in the trial court. A simple statement that embodies the objection and reason for the objection suffices. However, neither the Code nor Rule 5A:18 is complied with by merely objecting generally to an order. Counsel may comply with Rule 5A:18 in many ways, including making the objection and the ground for the objection clear in a motion to strike, in closing argument; during a motion to set aside the verdict or to reconsider, or in a final order.

1989---Emrich v. Emrich, 9 Va. App. 288
A unilateral avowal of counsel, a formal proffer, or a mutual stipulation is sufficient to preserve a question for appeal.

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