[Posted September 26, 2012] Back in June, the Supreme Court decided a troublesome preservation issue in Brandon v. Cox, an appeal of a judgment against a pro se litigant. The problem was that the appellant hadn’t sufficiently preserved her argument over the normal course of the litigation. She remedied that problem in a more detailed motion to reconsider, filed after the court entered final judgment (but within 21 days, so it was timely). The circuit court let the matter die without a ruling.

On appeal, the appellant tried to raise the arguments that were presented in the motion to reconsider. A solid majority of the Supreme Court held that the issues were waived, since the trial judge had never ruled on the motion, and the record did not indicate that the judge had ever considered it. As I’ve preached before, appellate courts don’t review trial courts; they review trial courts’ rulings. If there’s no ruling, there’s nothing for the appellate court to do.

After I posted my analysis of that case, one of my readers pointed out an analytical problem that I hadn’t considered before. In an addendum that I posted the next day, I discussed that problem: Rule 4:15 forbids parties to schedule hearings on motions for reconsideration, unless the court directs one. In effect, the Supreme Court was ruling that the plaintiff had waived the issue because she hadn’t done something – schedule a hearing to get a ruling – that the rules forbid her to do.

The appellant in the case filed a petition for rehearing in the Supreme Court, and while I haven’t seen that petition, I infer that she raised this procedural problem. On Monday, the court entered a short order granting the PFR, but stating that no new briefs or oral argument would be permitted. (This reflects the court’s new formulation of Rule 5:37(f), which formerly mandated new briefing and a new oral argument. Now the court can decide whether or not to rehear the matter before issuing a new opinion.) Yesterday, in an amended opinion that’s available here, the court again rules (by the same 6-1 margin) that the issue is waived.

This time, the opinion of the court addresses the Rule 4:15 problem – sort of. The previous holding that the appellant failed to request a hearing on the motion, has been vaporized for understandable reasons. The only other significant change I can see (other than changing “Brandon did not request a hearing . . .” to “there is no evidence in the record that the trial court had the opportunity to rule . . . “) is the addition of a single sentence in a footnote. Here’s that sentence in its entirety; you judge whether it satisfactorily addresses what looks to me like a vicious circle in the rules:

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.

A few years ago, the broadcast of ESPN’s Monday Night Countdown (a pregame show for Monday Night Football) introduced a feature called, “C’mon, Man!” It featured short clips of receivers botching easy catches, of tacklers missing runners completely, and other instances where players simply failed to perform what should have been easy tasks. The implicit follow-up to the title is something like, “you’re supposed to make that play.” The feature is so popular, it has its own Facebook page.

This new sentence in the footnote gets my nod for the appellate version of “C’mon, Man!” Any trial practitioner will know what the justices in the majority have just ignored: There is no way under the rules to ensure that the trial court has an “opportunity to rule” on a motion to reconsider.

Justice Mims takes up this issue and runs with it. He notes that in a relatively recent case, the Supreme Court held that post-trial briefing in a motion to reconsider “adequately preserved the issue for review in this appeal.” Majorana v. Crown Central Petroleum, 260 Va. 521, 525 n.1 (2000). To be fair to the majority, the appellant in Majorana did get an unfavorable ruling on rehearing in the trial court. But Majorana was tried before the effective date of Rule 4:15. Today’s majority seems to indicate that if the judge had simply ignored the motion, then that appellant would be out of luck.

Combining Majorana and Rule 4:15 leads to a conundrum, according to the dissent:

[I]f a motion for reconsideration is sufficient to 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?

You know what? He’s right. Let’s assume that filing the motion isn’t enough, as the majority has ruled. What will suffice, then? A letter to the clerk or to chambers, notifying his Honor of the pendency of the motion? Nope; that does nothing that the filing of the motion wouldn’t have done. A phone call to the judge’s secretary or clerk? As the dissent points out, that phone call wouldn’t show up in any appellate record. Perhaps the litigant could ignore Rule 4:15 and try to set a hearing; but most trial courts’ docket clerks would weed that out in a hurry. That leads me back to the conclusion that it is literally impossible, under the existing rules, for a litigant to ensure that her motion for reconsideration is actually adjudicated within 21 days.

As I wrote back in June, there’s only one way to prevent this problem, and that’s to make a sufficient record before judgment. But if that’s the only way to proceed, it brings into question why we permit reconsideration motions at all. It would also wipe out the holding of Majorana, making reconsideration motions a dead procedural tool. (That might make a lot of trial judges happy, but . . .)

When a litigant identifies an impossible rules-based procedural requirement like this, I believe that the justices have an obligation to resolve the problem in something more than the backhanded fashion that appears in footnote 2. Basically, the court is saying to litigants, “We know you’ve got an insoluble issue there, but that’s your problem; you figure out how to deal with it.” This isn’t in the same class as, “Let them eat cake,” of course; but it does provide no guidance at all to trial counsel as to how they can fulfill their obligation to get a ruling. Providing that kind of guidance is one of the functions of appellate courts. C’mon, man . . .