Commonwealth v. Amos

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
McClanahan, JJ., and Lacy, S.J.

COMMONWEALTH OF VIRGINIA

v. Record No. 130757 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
FELECIA AMOS February 27, 2014

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal we consider whether the Court of Appeals

erred in holding that the contemporaneous objection exception in

Code § 8.01-384(A) allows a litigant who was precluded by the

trial court from asserting a contemporaneous objection to the

court’s ruling or order to raise the issue on appeal,

notwithstanding the provisions of Rule 5A:18.

I. BACKGROUND

In July 2010, Antonio Jose Amos was convicted in the

Circuit Court of Arlington County of assaulting his estranged

wife, Felecia Amos. Mr. Amos was sentenced to six months’

incarceration, suspended for one year conditioned on good

behavior, and ordered, as relevant here, to have no contact with

Felecia Amos and to not harass her.

Three months later, in October 2010, Ms. Amos wrote a

letter to an Assistant Commonwealth’s Attorney for Arlington

County alleging that Mr. Amos had harassed her through telephone

calls and text messages and that he had threatened her during

two custody exchanges of their son. She alleged that Mr. Amos’
actions violated the terms of his probation and that she was

seeking help from the Commonwealth Attorney’s Office because she

was “in fear of [her] life.” Based on this letter, the

Assistant Commonwealth’s Attorney sought and obtained a rule to

show cause against Mr. Amos.

At the hearing on the show cause order, Ms. Amos testified,

among other things, that during a particular custody exchange

Mr. Amos harassed and threatened her, used profanity against

her, told her she was “going down,” and followed her in his car

when she left the premises. Her testimony was contradicted by

the testimony of Mr. Amos and another individual who had

accompanied him to the custody exchange. The trial court also

heard a tape recording of the incident made by Mr. Amos that was

consistent with Mr. Amos’ testimony. The Commonwealth provided

no rebuttal testimony or other evidence.

The trial court ruled that Mr. Amos had not violated the

terms and conditions of his probation and dismissed the rule to

show cause. The trial judge then stated that he was “not

through.” He called Ms. Amos to “[s]tand in front of [the]

podium” and told her that she had “flat-out lied under oath,”

was “nothing but a vindictive woman towards [Mr. Amos],” and

that she was not going to “use this process to further that

vindictiveness.” The trial judge then summarily held Ms. Amos

in contempt of court pursuant to Code § 18.2-456, sentenced her

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to jail for ten days, remanded her into custody, and called the

next case. Ms. Amos was immediately taken to jail. She did not

object or make any statements to the trial judge at the time of

the contempt ruling on June 10, 2011.

On June 27, 2011, Ms. Amos, pro se, filed a “MOTION TO

VACATE SENTENCE AND OBJECT TO THIS HONORABLE COURT['S] FINDING.”

Ms. Amos argued that she testified truthfully, was never given

an opportunity to object to the trial court’s finding of

contempt, that the trial court deprived her of her

constitutional rights to due process, and that her conduct did

not require summary punishment because it was not an open,

serious threat to orderly procedure. Ms. Amos simultaneously

filed a notice of appeal to the Court of Appeals of Virginia.

No hearing was held or ruling issued on Ms. Amos’ pro se motion.

In her petition for appeal to the Court of Appeals, Ms.

Amos assigned error to the trial court’s order of conviction,

asserting that there was insufficient evidence to support the

summary contempt conviction and that her constitutional due

process rights were violated. The Commonwealth contended that

Ms. Amos failed to preserve the issues she raised on appeal

because she did not object at the time the trial court held her

in contempt and she did not get a ruling on her motion for

reconsideration or show that the trial court was made aware of

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her arguments as required by Rule 5A:18 and Brandon v. Cox, 284

Va. 251, 736 S.E.2d 695 (2012).

The Court of Appeals en banc reversed Ms. Amos’ summary

contempt conviction and entered final judgment in a 6-5

decision. Amos v. Commonwealth, 61 Va. App. 730, 740 S.E.2d 43

(2013). The majority concluded that the trial court deprived

Ms. Amos of any opportunity to object at the time of the ruling

and

[t]he fact that the trial court never ruled on her
motion to reconsider or was not made aware of it
does not foreclose appellate review of Mrs. Amos’s
arguments. This conclusion is driven by a plain
language reading of Code § 8.01-384(A), that the
absence of such an opportunity to object “shall
not thereafter prejudice [a party] . . . on
appeal.”

Id. at 737, 741, 740 S.E.2d at 46-47, 49.

The Commonwealth appealed to this Court, assigning error to

that part of the Court of Appeals’ judgment holding that

pursuant to Code § 8.01-384(A) Ms. Amos did not default the

arguments raised on appeal. The Commonwealth did not assign

error to the Court of Appeals’ holding that Ms. Amos was denied

the opportunity to object at the time of the summary contempt

ruling or the Court of Appeals’ reversal of the summary contempt

conviction.

II. ANALYSIS

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 This appeal requires us to construe relevant provisions of

Code § 8.01-384(A). Issues of statutory construction are

questions of law which we review de novo. Jay v. Commonwealth,

275 Va. 510, 517, 659 S.E.2d 311, 315 (2008). We apply the

plain meaning of the language appearing in the statute unless it

is ambiguous or applying the plain language leads to an absurd

result. Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d

642, 644 (2012).

Code § 8.01-384(A) addresses the various actions that a

party may take to preserve an issue or argument for assertion on

appeal. 1 It also contains an exception to the contemporaneous

objection requirement which provides:

1
Code § 8.01-384(A) provides as follows:

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; and, if a party has no
opportunity to object to a ruling or order at the time
it is made, the absence of an objection shall not
thereafter prejudice him on motion for a new trial or
on appeal. No party, after having 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. No 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

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 if a party has no opportunity to object to a
ruling or order at the time it is made, the
absence of an objection shall not thereafter
prejudice him on motion for a new trial or on
appeal.

Id.

The Commonwealth argues that although Code § 8.01-384(A)

may excuse the requirement of a contemporaneous objection, it

does not immunize the litigant from affording the trial court an

opportunity to rule on his objection at a later point in the

proceeding and obtaining a ruling on that objection under Rule

5A:18 and Nusbaum v. Berlin, 273 Va. 385, 406-07, 641 S.E.2d

494, 505-06 (2007). We disagree.

The plain language of the contemporaneous objection

exception in Code § 8.01-384(A) states that when the litigant,

through no fault of his own, is prevented from making a

contemporaneous objection to the court’s ruling or order, the

failure to object “shall not thereafter prejudice” the litigant

on appeal. (Emphasis added.) This language is clear and

unqualified. The statute imposes no requirement that when the

contemporaneous objection exception applies, a party, if able,

appeal except by express written agreement in his
endorsement of the order. 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.

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must file a post-conviction objection or otherwise bring the

objection to the court’s attention at a later point in the

proceedings as the Commonwealth argues. To adopt the

Commonwealth’s position would require us to add language to the

statute. This Court may not construe the plain language of a

statute “in a manner that amounts to holding that the General

Assembly meant to add a requirement to the statute that it did

not actually express.” Vaughn, Inc. v. Beck, 262 Va. 673, 679,

554 S.E.2d 88, 91 (2001). Nor may the Court “‘add language to

[a] statute [that] the General Assembly has not seen fit to

include.’” Virginia Elec. & Power Co. v. State Corp. Comm'n,

284 Va. 726, 741, 735 S.E.2d 684, 691 (2012)(quoting Jackson v.

Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906

(2005) and Holsapple v. Commonwealth, 266 Va. 593, 599, 587

S.E.2d 561, 564-65 (2003)).

We agree with the Court of Appeals’ observation that a

person who had no opportunity to object at the time a ruling is

made

may be able to and may choose to file a motion to
reconsider. It may even be wise to do so. Such a
step, however, is not required under Code § 8.01-
384(A) in order to preserve an issue for appellate
review.

Amos, 61 Va. App. at 740, 740 S.E.2d at 48.

Contrary to the Commonwealth’s argument, Rule 5A:18 does

not require a different result. Rule 5A:18 and our case law

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requiring an issue to be presented to the court for

determination as a predicate for appellate review focuses on the

actions of the litigant. See, e.g., Scialdone v. Commonwealth,

279 Va. 422, 437-39, 689 S.E.2d 716, 724-25 (2010)(explaining

that the purpose of Rule 5:25 is to afford the trial court with

an opportunity to rule intelligently on issues presented by a

party and that under the facts presented, the defendants

satisfied such purpose by stating objections and grounds

therefor in a motion to stay); 2 Brown v. Commonwealth, 279 Va.

210, 217-18, 688 S.E.2d 185, 189-90 (2010)(concluding

Commonwealth made position known to trial court, thus providing

it with an opportunity to rule on that position); George v.

Commonwealth, 276 Va. 767, 773-74, 667 S.E.2d 779, 782

(2008)(holding defendant put court on sufficient notice of

position); Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164,

167 (1991)(finding plaintiffs preserved issues for appeal in

hearing and motion to rehear); Jackson v. Chesapeake & Ohio Ry.

Co., 179 Va. 642, 651, 20 S.E.2d 489, 492 (1942)(holding party

must state objection and grounds in such a manner that the trial

judge can understand the question to be decided). When failure

2
This Court has previously noted that Rule 5:25 is the
“counterpart” to Rule 5A:18, and that Code § 8.01-384(A), which
“controls” the interpretation of Rule 5:25, “likewise inform[s
the] interpretation of Rule 5A:18.” Brown v. Commonwealth, 279
Va. 210, 217, 688 S.E.2d 185, 189 (2010)(citing Helms v.
Manspile, 277 Va. 1, 7, 671 S.E.2d 127, 130 (2009)).

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to raise a contemporaneous objection or otherwise bring an

objection to the court's attention results from a party’s

actions, the contemporaneous objection exception of Code § 8.01-

384(A) does not apply, and the preservation issue will be

decided under the provisions of Rule 5A:18 or Rule 5:25, and

case law applying those rules. However, when a party is denied

the opportunity to raise a contemporaneous objection, the

contemporaneous objection exception of Code § 8.01-384(A)

applies.

Finally, Nusbaum, the case upon which the Commonwealth

relies, is not dispositive of this case. In Nusbaum, the

appellant repeatedly brought his objection to the attention of

the trial court but also repeatedly asked the trial court not to

rule on his objection and affirmatively stated that he was not

asking the court to change its rulings. 273 Va. at 404, 641

S.E.2d at 504. On appeal, the appellant argued that because he

objected to the trial court’s rulings and later made the trial

court aware of the substance of his objection to the contempt

order orally and as an objection to the final order, he “did all

that was required” to preserve the issue for appeal under Code §

8.01-384(A). Id. at 402, 641 S.E.2d at 503. The Commonwealth

argued that the issue was not preserved because Rule 5:25

required the appellant to seek a ruling on his due process

objections. Id.

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 We rejected the application of Code § 8.01-384(A) in the

manner suggested by the appellant in Nusbaum, noting that the

case did not involve a situation where the court denied the

appellant an opportunity to raise a contemporaneous objection as

envisioned by the contemporaneous objection exception of Code §

8.01-384(A). Id. at 406, 641 S.E.2d at 505. Consequently, the

litigant was not entitled to the benefit of the exception and we

rendered no opinion on its application. We applied Rule 5:25

and concluded that, under the circumstances of that case, the

due process issue was not preserved for appeal because the

appellant failed to secure a ruling on his objection. Id.

The unusual circumstances of this case demonstrate why an

exception of this nature is warranted. Here, Ms. Amos was not a

party. Rather, she was only a witness and consequently was not

represented by counsel. Following the trial judge’s ruling, she

was immediately taken to jail without any further consideration

by the court. Furthermore, Maxwell v. Commonwealth, 287 Va.

___, ___ S.E.2d ___, (2014)(this day decided) and this case are

the first cases that require us to consider the application of

this statutory exception. The paucity of cases that have

invoked the contemporaneous objection exception during the past

40 years demonstrates that litigants are rarely precluded from

making contemporaneous objections to orders or rulings of the

court. Nevertheless, the exception is appropriate when

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circumstances such as those in this case arise. Here the

parties do not dispute that the actions of the trial court

prevented Ms. Amos from presenting a contemporaneous objection.

Therefore, the contemporaneous objection exception of Code §

8.01-384(A) applies and no further steps were required to

preserve her issues for appellate review.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

JUSTICE MCCLANAHAN, dissenting.

I disagree with the majority's interpretation and

application of Code § 8.01-384(A). The statute simply does not

dictate that a party having "no opportunity to object to a

ruling or order at the time it is made" is relieved of any

obligation to later state his objection if the trial court can

still take corrective action - whether in the context of summary

contempt or otherwise.

To be sure, under the express terms of Code § 8.01-384(A),

a party will not be "prejudice[d]" by his failure to make a

contemporaneous objection if he has no opportunity to do so.

Nevertheless, if that party later has an opportunity to make his

objection in time for the trial court to correct the purported

error, but fails to object, it is that failure which causes him

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"prejudice" on appeal, i.e., default, not the absence of a

contemporaneous objection. Id. And, manifestly, the statute

makes no provision to the contrary.

Accordingly, for these reasons, along with those stated in

the dissent to the Court of Appeals' en banc opinion addressing

the proper construction of Code § 8.01-384(A), Amos v.

Commonwealth, 61 Va. App. 730, 746-49, 740 S.E.2d 43, 51-53

(2013) (Felton, C.J., dissenting), I would reverse the Court of

Appeals and affirm the judgment of the trial court. Therefore,

I dissent.

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