PRESENT: All the Justices
TORRI A. BRANDON
OPINION BY
v. Record No. 111396 JUSTICE CLEO E. POWELL
June 7, 2012 1
RICHARD COX, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this appeal, Torri A. Brandon argues that the trial
court erred in ruling that her security deposit could be
retained by Richard Cox and Horner & Newell, Inc. ("Horner") to
satisfy the alleged rent obligation of the housing authority.
Because Brandon failed to preserve this argument for appeal, we
hold that the argument is waived, and we will affirm the
judgment of the trial court.
I. FACTS AND PROCEEDINGS
Brandon was a Section 8 tenant in a property owned by Cox
and managed by Horner. For reasons beyond her control, Brandon
prematurely terminated her lease. Despite receiving a Landlord
Certification of Good Standing which stated that Brandon did
not owe any back rent, did not owe anything for any damage to
the property, and had not violated the terms of the lease, Cox
retained her security deposit.
In December of 2010, Brandon filed a warrant in debt
against Cox and Horner seeking the return of her security
1
As amended by Order of the Court dated September 24, 2012.
1
deposit. The general district court ruled in favor of the
defendants.
Brandon appealed to the circuit court, which found in
favor of the defendants on May 5, 2011. On May 17, 2011,
Brandon filed a motion for reconsideration and memorandum in
support thereof in which she made the argument that she now
makes on appeal. Nothing in the record indicates that Brandon
affirmatively sought a ruling from the trial court or that the
trial court ever considered the motion. Brandon filed her
notice of appeal on June 3, 2011. On June 27, 2011, Brandon
filed a proposed written statement of facts and requested a
hearing on the matter. The trial court entered the written
statement of facts on July 15, 2011. The written statement of
facts does not contain any details about the argument made by
counsel at the trial or the ruling made by the court.
Furthermore, the written statement of facts makes no reference
to the motion for reconsideration. This appeal followed.
II. ANALYSIS
Code § 8.01-384(A) states:
Formal exceptions to rulings or orders of the
court shall be unnecessary; but for all purposes
for which an exception has heretofore been
necessary, it shall be sufficient that a party,
at the time the ruling or order of the court is
made or sought, makes known to the court the
action which he desires the court to take or his
objections to the action of the court and his
grounds therefor . . . . No party, after having
2
made an objection or motion known to the court,
shall be required to make such objection or
motion again in order to preserve his right to
appeal, challenge, or move for reconsideration
of, a ruling, order, or action of the
court. . . . 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.
Our rules of court apply this statute such that "[n]o ruling of
the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable
certainty at the time of the ruling." Rule 5:25.
The statute and rule have been interpreted to mean that
"[a] party must state the grounds for an objection 'so that the
trial judge may understand the precise question or questions he
is called upon to decide.' " Scialdone v. Commonwealth, 279
Va. 422, 437, 689 S.E.2d 716, 724 (2010) (quoting Jackson v.
Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489, 492
(1942)). "To satisfy the rule, 'an objection must be made
. . . at a point in the proceeding when the trial court is in a
position, not only to consider the asserted error, but also to
rectify the effect of the asserted error.' " Id. (quoting
Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731
(2002)).
3
Rule 5:25 exists " 'to protect the trial court from
appeals based upon undisclosed grounds, to prevent the setting
of traps on appeal, to enable the trial judge to rule
intelligently, and to avoid unnecessary reversals and
mistrials.' " Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d 137,
146 (2000) (quoting Fisher v. Commonwealth, 236 Va. 403, 414,
374 S.E.2d 46, 52 (1988)). Recognizing that the purpose of the
rule is not " 'to obstruct petitioners in their efforts to
secure writs of error, or appeals,' " this Court has
consistently focused on whether the trial court had the
opportunity to rule intelligently on the assigned error.
Scialdone, 279 Va. at 437, 689 S.E.2d at 724 (quoting Kercher
v. Richmond, Fredericksburg & Potomac R.R. Co., 150 Va. 105,
115, 142 S.E.2d 393, 395 (1928)). The purpose of the rule is
to " 'to put the record in such shape that the case may be
heard in this [C]ourt upon the same record upon which it was
heard in the trial court.' " Id.
A review of the record in this case demonstrates that
Brandon had two opportunities to preserve her argument for
appeal. Her first opportunity to do so was during the trial.
However, the order entered by the trial court on May 5, 2011,
merely states that after receiving evidence and hearing
argument from both sides, "it is ORDERED that the plaintiff
take nothing and that judgment be entered in favor of the
4
defendants" and, "[e]xceptions are noted." Moreover, her
statement of facts is only a recitation of the facts leading to
the trial in the general district court. Therefore, because
neither her written statement of facts nor the order indicates
what argument was made to the trial court and what ruling was
made, this opportunity was lost.
Brandon's second opportunity to preserve her argument was
through her written motion for reconsideration in which she
made the argument she now makes on appeal. There is no
evidence in the record that Brandon requested or received a
ruling on her motion for reconsideration. Thus, the question
for this Court is whether Brandon availed herself of her second
opportunity to preserve her argument for appeal.
Code § 8.01-384(A) makes it clear that an argument made at
trial through a written document, such as a motion for
reconsideration, is properly preserved unless expressly waived
or withdrawn. We must now, however, consider as a matter of
first impression whether merely filing a motion in the clerk's
office of a circuit court properly preserves a litigant's
argument for appeal when the record fails to reflect that the
trial court had the opportunity to rule upon that motion. 2
2
Indeed, we have previously held that an argument is
adequately preserved where the appellant obtained a ruling on,
i.e. denial of, her post-trial motion for reconsideration.
Majorana v. Crown Central Petroleum Corp., 260 Va. 521, 525,
5
Because the purpose of Rule 5:25 is to ensure that the
trial court has the opportunity to rule upon an argument, the
record must affirmatively demonstrate that the trial court was
made aware of the argument. " 'If [the] opportunity [to
address an issue] is not presented to the trial court, there is
no ruling by the trial court on the issue, and thus no basis
for review or action by this Court on appeal.' " Scialdone,
279 Va. at 437, 689 S.E.2d at 724 (quoting Riverside Hosp.,
Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006)).
Brandon filed a motion for reconsideration with a
supporting memorandum containing the argument she advances on
appeal, but she failed to obtain a ruling on her motion to
reconsider. Tellingly, Brandon's written statement of facts
entered by the trial court is devoid of any mention of her
motion and argument as well as the nature of the trial court's
ruling. Nothing in the record indicates that the trial court
was made aware that the motion for reconsideration and
memorandum in support thereof were filed, and thus the
statutory requirement of Code § 8.01-384(A) that the aggrieved
party "make[] known to the court the action which he desires
539 S.E.2d 426, 428 (2000). Although Rule 4:15(d) provides for
a hearing only at the request of the court, it is incumbent
upon the party seeking an appeal to provide us with a record
that shows, beyond a mere filing in the clerk's office, that
the court had an opportunity to rule.
6
the court to take or his objections to the action of the court
and his grounds therefor" was not met in this case. Because
there is no evidence in the record that the trial court had the
opportunity to rule upon the argument that Brandon presents on
appeal, it cannot be said that the case can be heard in this
Court upon the same record upon which it was heard in the trial
court and, therefore, the purpose of Rule 5:25 is defeated.
Thus, we must hold that she has waived her argument by failing
to preserve it. 3
3
This case does not present the type of "grave injustice"
that the "ends of justice" exception to Rule 5:25 contemplates.
Whether the ends of justice provision should be
applied involves two questions: (1) whether
there is error as contended by the appellant;
and (2) whether the failure to apply the ends of
justice provision would result in a grave
injustice.
Gheorghiu v. Commonwealth, 280 Va. 678, 689, 701 S.E.2d 407,
413 (2010)(citing Charles v. Commonwealth, 270 Va. 14, 17, 613
S.E.2d 432, 433 (2005)). Historically,
[w]e have applied the ends of justice exception
of Rule 5:25 in very limited circumstances
including, for example, where the record
established that an element of the crime did not
occur; a conviction based on a void sentence;
conviction of a non-offense; and a capital
murder conviction where the evidence was
insufficient to support an instruction.
Id. at 689, 701 S.E.2d at 414 (internal citations omitted).
The decisions in Ball v. Commonwealth, 221 Va. 754, 758-59, 273
S.E.2d 790, 793 (1981), and Cooper v. Commonwealth, 205 Va.
883, 889-90, 140 S.E.2d 688, 692-93 (1965), are consistent with
our prior approach of applying the exception sparingly.
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III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the trial court.
Affirmed.
JUSTICE MIMS, dissenting.
This is a case in which a landlord withheld a low-income
tenant’s security deposit although he was not entitled to it
under the law or the lease. 1 Rather than reversing this grave
injustice, the Court extends Rule 5:25 in a manner not
compelled by our precedents.
The Court decides this case by determining that the record
does not establish that the tenant presented to the trial court
the argument she makes on appeal. The appellant bears the
burden of providing to the appellate court a record upon which
it can review the judgment appealed from, including the
evidence adduced at trial, the arguments made below, and the
bases for the lower court's rulings. See Prince Seating Corp.
v. Rabideau, 275 Va. 468, 470-71, 659 S.E.2d 305, 307 (2008)
(per curiam).
However, as the Court acknowledges, we previously have
1
The landlord entered no appearance in this Court.
Similarly, the record reveals no hint of his defense below
because it contains no written motion, pleading, or other
paper, or any oral argument or motion. Cf. Code § 8.01-271.1.
8
held that a written post-trial motion for reconsideration is
sufficient to preserve an argument for appeal. Majorana v.
Crown Central Petroleum Corp., 260 Va. 521, 525, 539 S.E.2d
426, 428 (2000). Brandon filed such a motion. Yet the Court
determines that merely filing the motion is inadequate because
"[t]here is no evidence in the record that Brandon requested or
received a ruling on" it.
In my view, parties who file such motions do so with every
intention that the court review the issues they raise. The
filing of such a motion is evidence that the movant "requested
a ruling" on it. 2 This is especially true regarding motions for
reconsideration because Rule 4:15(d) prohibits a party from
requesting a hearing; rather, no hearing may be had except at
the court's request. The Rule therefore places a special
obligation upon the court to review such motions without
prompting by the parties, since it is otherwise unable to
determine whether a hearing is necessary.
Thus, taken together, Majorana and Rule 4:15(d) create a
conundrum: if a motion for reconsideration is sufficient to
2
Nothing in the record here indicates that Brandon's
motion was filed perfunctorily, with no expectation that the
court would actually rule on it. Cf. Nusbaum v. Berlin, 273
Va. 385, 396-97, 641 S.E.2d 494, 499-500 (2007) (appellant
stating, "I am not asking the court at this time to change its
ruling. I am simply going to make sure that I have preserved
any right of appeal . . . ." (internal quotation marks and
alterations omitted)).
9
preserve an argument for appeal under Majorana, yet a party may
not request a hearing on such a motion under Rule 4:15(d), how
does the appellant establish for the record that the trial
court had an opportunity to rule intelligently on the motion?
I would resolve the question by holding that, at least with
respect to motions for reconsideration, mere filing is
sufficient. After all, a separate letter to the clerk of court
presumably would be no more effective in bringing the motion to
the court's attention than the filing of the motion itself.
Conversely, a letter or phone call to the chambers secretary or
law clerk may be more effective in bringing the motion to the
court's attention, but the record would be unlikely to reveal
any trace of the effort.
Finally, this case is amenable to the Rule’s ends of
justice exception. 3 While I agree with the Court’s
assessment that the exception should be applied sparingly,
the unlawful withholding of even $995, the amount in
controversy here, is a grave injustice to a person who
qualifies for Section 8 housing assistance, as Torri Brandon
3
The tenant has not invoked the ends of justice exception.
A review of appellants’ briefs in cases where this Court has
applied the exception reveals that we have reversed lower
courts’ judgments sua sponte on the basis of arguments not made
below, even where the appellant made no mention of the
exception. See, e.g., Ball v. Commonwealth, 221 Va. 754, 758-
59, 273 S.E.2d 790, 793 (1981); Cooper v. Commonwealth, 205 Va.
883, 889-90, 140 S.E.2d 688, 692-93 (1965).
10
did. I therefore must respectfully dissent.
11