What to Watch for at Trial in Virginia Courts to Avoid Having Your Appeal “Disqualified” or “Sent to the Rear"
This article first appeared in the Journal of Civil Litigation, Vol. 35, No. 4, a publication of the Virginia Association of Defense Attorneys. It appears here with permission.
The author thanks former WRVB associate, Alli Mentch for her co-authorship, research, and insightful contributions to this article.
With the expansion in the size and scope of the Court of Appeals of Virginia on January 1, 2022, civil litigators in Virginia have an increased likelihood of a full appeal of virtually any trial court decision. However, since there are many seemingly innocuous ways an appeal may be harmed or lost, trial counsel must consider the finer points of appellate procedure during the trial phase of any case. Even the most effective appellate lawyer may be unable to save a case if procedural default has been baked in at trial. Therefore, this article provides an overview of some common ways a trial litigator may harm or even destroy his or her chances on appeal.
The article begins with an analogy comparing the sport of NASCAR racing to appellate advocacy to emphasize the importance of following the technicalities and rules to maximize the chances of success and minimize the chance of default. In NASCAR, a driver may put on a strong driving performance and the crew may build the fastest car and have the best pit stops, but the team can have its race day ruined by a technical violation embedded in the car. In a similar way, a party may have a strong argument and an effective appellate advocate but may nonetheless lose because of something that did or did not happen at the trial level.
I. An Analogy: Technical Mistakes before a Race Can Ruin a Team’s Day
NASCAR fans may be familiar with the disappointing situation where a favorite driver loses a race due to a technicality.1
Track position is important in racing. It is advantageous to start a race near the front of the pack. Typically, teams will run time trials before a race to qualify for starting positions.
But teams can be placed at a disadvantage before a race begins by failing a pre-race inspection. NASCAR performs pre-race inspections for technical compliance with NASCAR’s rules about the car. If a car fails a pre-race inspection twice, it may be sent “to the rear” meaning that it has to start at the back of the pack and may lose team members for the race, among other penalties.2 After failing three times, the team may also be subject to a pass-through penalty on the first lap, meaning that it has to drive down pit road on the first lap, which results in the car being further behind and victory much less likely.3
Even more devastating is a problem found on post-race inspection. After a race, NASCAR conducts a post-race inspection on certain cars, including the top finishers, which is more thorough than the pre-race one.4 Failure of a post-race inspection results in disqualification.5 Thus, a car may win a race only to have the victory taken away by a lurking and technical violation with the car itself that occurred before the race.6 It is a deflating result after so much hard work.
In a similar way, a party may have its efforts hampered by a technical violation with the case that occurred before the appeal began. The violation may come to light at the beginning of the appeal or—even more frustrating—after an appeal has been fully briefed and argued.
II. Overview of the New Virginia Appellate System
The expansion of the Court of Appeals of Virginia in both size and scope is an important change in Virginia civil procedure. There have been several articles published discussing and analyzing the mechanics and importance of the expansion.7 Previously, most civil litigants (except in limited cases like domestic relations, administrative, and workers’ compensation cases) were left with petitioning the Supreme Court of Virginia in hopes of having an appeal granted.
With the expansion, nearly all civil and criminal litigants gained the right to a full appeal of final orders before the Court of Appeals of Virginia. This eliminated the initial hurdle of petitioning to have an appeal heard at all. Nearly all losing litigants in circuit court have an opportunity for full consideration of a final order by the Court of Appeals of Virginia. And, if they are dissatisfied with the ruling of the court of appeals, they may petition to the Supreme Court of Virginia.8 Thus, with the much greater likelihood of an appeal of a circuit court ruling, litigators should redouble their efforts to avoid procedural missteps at trial that could harm an appeal.
III. Common Trial Mistakes That Can Hurt (or Destroy) a Potential Appeal
Just as technical problems with a car design may undermine a race team’s efforts on race day, there are technical errors at trial that can make victory on appeal more difficult, if not impossible. Even trial counsel who do not handle appeals and instead recruit an appellate specialist to handle a case once it is before an appellate court need to be aware of certain missteps at trial that may harm or doom an appeal.9
A. Failing to Preserve Error10
Trial attorneys must keep preservation of error in the back—and front—of their minds. Just as a mistake in building a race car can negate the talents and efforts of the best teams, it is next to impossible for even the most effective appellate lawyers to succeed with arguments if they were not made and preserved in the trial court. In general, if an issue or argument is not raised at trial, it is not going to be entertained on appeal.11
In general, a trial judge cannot be found to be in error on appeal if he or she was not both presented with the argument and given the opportunity to rule. Giving the trial judge the argument and the ability to consider and decide the issue promotes judicial economy by potentially avoiding the appeal altogether. It also ensures that the other party is able to address the issue in the trial court. Further, relevant arguments instead of having the court’s decision reviewed on a totally new basis on appeal.12 Only in rare circumstances—”for good cause shown”13 or “to attain the ends of justice”14— will the appellate courts entertain an argument that was not made below. The appellate courts take this issue so seriously that they require parties assigning error to pinpoint where the error was preserved in the record.15
Trial lawyers should be aware of the primary authorities governing preservation of error. Rule 5:25 of the Rules of the Supreme Court of Virginia addresses the contemporaneous objection rule in cases before the Supreme Court of Virginia:
No ruling of the trial court, disciplinary board, commission, or other tribunal before which the case was initially heard will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to preserve the issue for appellate review.
Rule 5A:18 addresses the same concept in cases before the Court of Appeals of Virginia in an identical manner. Section 8.01-384 of the Code of Virginia applies to appeals in all state courts:
- Formal exceptions to rulings or orders of the court shall be unnecessary; but for all purposes for which an exception has heretofore been unnecessary, 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 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 statement of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.
- The failure to make a motion for a new trial in any case in which an appeal, writ of error, or supersedeas lies to or from a higher court shall not be deemed a waiver of any objection made during the trial if such objection be properly made a part of the record.
The overarching point here is to make sure that parties do not save arguments for appeal. If there is a chance that a party may want to raise an issue on appeal, it should ensure that the argument is presented to the trial court and ensure that the trial court is given the opportunity to address the issue. There are a few nuances that are also worth noting on this topic.
- Virginia Code section 8.01-384 requires that objections be stated “at the time of the ruling.” Thus, a party has to make a “contemporaneous” objection at a time where the trial court can “do something about it.”16 “Specific, timely objections are required because they are often resolved, either because the trial court intervenes with a corrective ruling that accommodates the asserted interests of both sides or because opposing counsel gives a winning explanation that moots the objection altogether.”17
- But section 8.01-384 does provide an exception for instances where an appellant does not have an opportunity to raise a contemporaneous objection. In such instance, an appellant may appeal, even if that appellant fails to file a motion to reconsider or take other action while the circuit court still has jurisdiction over the case.18
- Objections regarding jury selection must be stated during that part of proceedings instead of later in the trial.19
- Objections to jury instructions must be made when the instruction is presented to the court.20 If a party fails to object, the jury instruction becomes the law of the case—even if the instruction contains an improper standard.21 In other words, the party will be deemed to have waived the
issue.22 Further, a motion to set aside a verdict will not rectify a party’s failure to object to a jury instruction.23 - The objection must be on the record. As discussed below, if an objection is stated in court but is not included in a transcript or a written statement of facts in lieu of transcript, then it practically did not happen for purposes of appeal.
- Objections cannot be made more than twenty-one days after a final order. Pursuant to Rule 1:1 of the Rules of the Supreme Court of Virginia, a trial court loses jurisdiction after twenty-one days have passed and the order has not been modified, vacated, or suspended by the trial court. Thus, a
motion to reconsider or some other filing in the trial court after twenty one days cannot preserve an argument for appeal because the trial court has lost jurisdiction at that point. Further, any motions to reconsider must be not only filed, but also heard and ruled upon, before the expiration of the twenty-one-day period.24 - The trial court must be given an opportunity to rule on the issue raised. The mere filing of a motion is insufficient—the party must have the motion heard and ruled upon, or attempt, on the record, to have it heard and the court refuses to rule on it, to preserve the issue for appeal.25 For example, if the court took a motion under advisement but did not render a ruling, the party should insist, on the record, that the court actually rule on the motion.26
- A party may not rely on objections made by a different party. If the party wants to make an argument on appeal, then it needs to join in on the objection on the record.27
- If a trial court has separate and independent bases for its ruling, a party needs to preserve argument regarding each.28 An appellate court will not consider an argument if an unchallenged basis supports the ruling. For instance, if a trial court excludes evidence because it is speculative and the potential prejudice outweighs its probative value, a party will need to challenge both bases in order to preserve the issue for appeal.29
- Another issue to watch out for is failing to renew arguments made in a motion to strike. The recent decision in Gunn v. Commonwealth is instructive. In that case the defendant presented a statutory argument in a motion to strike at the close of the Commonwealth’s evidence. That motion was overruled and defendant proceeded to present his own evidence. However, he never raised the argument again in a later motion to strike, motion to set aside the verdict, or closing argument. The court of appeals held that defendant failed to properly preserve his error because he presented evidence in his own defense and did not renew his argument.30
In general, if a party is seeking to uphold a trial court’s ruling on appeal, preservation is not essential. The prevailing party on the issue may make arguments for the first time on appeal to support the trial court’s ruling. The logic here is that a trial court’s ruling is presumed to be correct, and the burden is on the party seeking to change its result.31 Alternate arguments supporting a trial court’s ruling may be made on appeal under the “right result, wrong reason” doctrine.32 But it is impossible to know during a trial whether a party may be the future appellant or appellee, so counsel should ensure that all potential arguments are properly preserved for appeal.
B. Waiving an Issue for Appeal
Litigators should be aware of some traps for the unwary that prevent an issue from being decided on appeal due to waiver. A couple of examples follow below.
- Presenting the Same Evidence
A party may also waive issues on appeal by presenting the same or similar evidence at trial that it previously tried to exclude. This “same-evidence” principle applies where a party objects to the introduction of specific evidence, the objection is overruled, and the party later introduces the same evidence.33 In such a situation, a party will be deemed to have waived any objection on appeal.34 Virginia appellate courts have held that this principle applies to (1) evidence that is exactly the same, (2) evidence concerning the same subject, (3) evidence of the same character, and (4) similar evidence.35
Of note, a party’s inquiry into the same evidence on cross-examination will not be deemed a waiver of a prior objection.36 Waiver applies only where a party introduces evidence similar to that to which it had objected during their case in chief.37 Of course, there may be strategic reasons why a litigant may be willing to waive an argument in this manner to improve their case at trial. Accordingly, a party should carefully consider whether it is introducing evidence similar to that it sought to exclude during the other side’s case. - The Approbate-Reprobate Doctrine and Invited Error
In a similar vein, a party cannot “approbate and reprobate,” by taking inconsistent or contradictory positions during the course of litigation and inviting error in the judgment and then seeking reversal on appeal on that basis.38 The principle applies to both assertions of fact and law.39 For instance, in Nelson v. Commonwealth, the defendant filed a motion for a new trial three months after her conviction but later agreed that the trial court no longer had jurisdiction to hear the motion.40 On appeal, she argued that the trial court erred in holding that it lacked jurisdiction to hear the motion for a new trial.41 The Court of Appeals of Virginia declined to consider the issue because of the approbate-reprobate doctrine.42 Accordingly, a party should be mindful that they cannot invite an error of the trial court and then take a different position on appeal.43
C. Failing to Proffer Excluded Evidence
A party should be sure to proffer any evidence that is deemed inadmissible by the trial court in order to preserve the issue for appeal.44 A proffer ensures that an appellate court may determine whether the trial court erred in excluding evidence and whether such error was harmless.45 Without a proper proffer of the evidence that would have come in, appellate review is precluded.46 The Court of Appeals of Virginia has held that a proffer should also be made when a party unsuccessfully seeks a continuance in order to obtain evidence.47 The party must proffer the specific evidence that it is unable to present in order to later challenge the denial of the continuance request.48
If the lower court refuses to allow the proffer, the appellant should note that on the record as that itself may be the basis for a remand.49
D. Failing to Ensure that the Appellate Court has a Sufficient Record
An issue that derails many appeals is failing to ensure the appellate court record is sufficient. An appellate court will not look outside the universe of the record for an account of what happened at trial. The appellant has the burden to ensure that the record is sufficient for appeal and, if it is not, the appellate court will not consider the assignment of error affected.50
A frequent misstep in this regard is failing to timely submit a transcript or written statement of facts in lieu of transcript of the relevant proceedings below into the record. Often, without a transcript or written statement of facts in lieu of transcript, an appellate court does not know what position was taken or abandoned by the appellant at the hearing or whether the appellant took a position at the hearing inconsistent with the one taken on appeal.51
Compliance with this rule has been a frequent problem for litigants. A review of the August 2023 unpublished rulings from the court of appeals indicates that no less than nine appeals were not heard on their merits due to failure to present a transcript or written statement of facts in lieu of transcript.52
The operative rule states: “When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission will not be considered.”53 The Rules require that any transcripts (or written statements of facts in lieu of transcript) be filed in the trial court clerk’s office within sixty days after entry of a final order, a deadline that can be extended upon timely motion to within ninety days after entry of a final order and good cause to excuse the delay.54 Within ten days after a transcript is filed, counsel is required to give notice to other counsel of record of filing the transcript and file a copy of the same with the trial court clerk’s office.55 Written statements in lieu of transcript must be accompanied with a notice that the written statement will be presented to the trial judge no earlier than fifteen days nor later than twenty days after such filing.56 The other side may file objections to the transcript or written statement of fact within fifteen days of filing or, if the document was filed before a notice of appeal, within ten days of the notice of appeal.57 The judge may rule on objections and make any necessary corrections to the transcript and written statement of facts.58
One way to lower the risk of losing an appeal on this basis is to hire a court reporter to attend each court appearance; make sure that reporter captures everything that happened accurately; and order the transcripts if the case is appealed (and file them with the court in a timely and proper manner). As a last resort, a party should attempt to create an account of what happened below with a written statement of facts in lieu of transcript. Leaving the record silent as to what happened at a hearing, especially one relevant to a particular assignment of error, creates a significant risk of having affected assignments of error disqualified at the outset.
E. Failing to File a Timely Notice of Appeal
Perhaps the surest way to lose an appeal is to fail to file a timely notice of appeal in the trial court. If a party wants to appeal a final order, it must file a notice of appeal within thirty days of the court’s ruling.59
If a final order is vacated by the trial court, then a notice of appeal previously filed is “moot and of no effect” and a new notice of appeal must be timely filed subsequent to the new final order. However, no new notice of appeal is required if a final order is merely modified or suspended by the trial court subsequent to the filing of a notice of appeal.60
A notice of appeal is not an involved filing, but counsel should ensure that the item filed has the proper content, is filed in the right place, and is accompanied by the proper filing fees. In addition to filing in the trial court, the party must file a copy of the notice in the court of appeals along with a $50 filing fee. It must also advise whether a transcript will be filed.61 The Rules of the Supreme Court of Virginia include a helpful form with Rule 5A:6.
Failing to file a timely notice of appeal in the trial court is deadly to an appeal as it renders the appellate court without jurisdiction over the case.62 Thus, counsel should be assiduous in complying with the notice of appeal requirements.
F. Appeal Bond and Irrevocable Letter of Credit
Appeal bonds are a trap for the unwary. Parties that file an appeal of right to the court of appeals are required to post a $500 bond with their notice of appeal at the time of filing.63 If the appeal is discretionary, the bond must be posted within fifteen days after the appeal is granted.64 Surety is required unless the appellant posts cash as the bond.65 The appendices to Part 5 and 5A of the Rules of the Supreme Court of Virginia provide helpful forms.
Although filing a timely and compliant appeal bond is not jurisdictional,66 parties should avoid having the issue even potentially sidetrack their appeals from the merits. Thus, parties should be aware of the appeal bond rules and comply with them.
G. Suspension Bond and Irrevocable Letter of Credit
In general, enforcement of a trial court’s judgment is not automatically stayed pending appeal. If a party wants to preserve the status quo pending appeal, it should file a suspension bond or irrevocable letter of credit for the amount of judgment plus one year’s interest up to $25 million with the trial court.67 Again, surety is required unless the appellant posts cash as the bond.68 The appendices to Parts 5 and 5A of the Rules of the Supreme Court of Virginia provide helpful forms.
Absent compliance with this procedure (or entry of a suspension order by the court), the trial court’s order is “live.” For example, a creditor may start collection activities on an appellant debtor despite the judgment being appealed. Notably, the trial court can refuse to suspend the execution of a judgment in support, custody, and injunction rulings.69 But a court can also order that security is unnecessary for any amount beyond compensatory damages and the parties can agree to an amount of security less than compensatory damages or waive the need for a suspension bond altogether.70 There are some areas of law where a suspension bond is not required to stay a judgment on appeal, including workers’ compensation appeals filed by an employer, and appeals filed to protect the estate of a decedent, a person under a disability, or the interest of the Commonwealth or any locality.71
A related issue is the voluntary payment doctrine. If a debtor voluntarily pays a judgment while that judgment is being appealed, the appeal becomes moot.72 Thus, if parties wish to preserve the status quo on appeal, they should file a suspension bond or irrevocable letter of credit.
IV. Conclusion
Trial counsel should be aware of how decisions at trial may affect their clients’ chances on appeal. As a technical noncompliance in the building of a racecar can ruin a team’s day, a problem embedded in the trial court record may be impossible to fix on appeal. Thus, especially in the new world of appeals of right in Virginia courts, it is important for trial counsel to understand these and other appellate concepts to avoid having their appeal “disqualified” or “sent to the rear.”
1 Notably, NASCAR does not make its official rule book publicly available. Bob Pockrass, Steve O’Donnell: ‘Like what we’re seeing so far’ on stages, parity. ESPN, Apr. 12, 2017, https://www.espn.com/racing/nascar/story/_/id/19137943/nascar-2017-qa-steve-odonnell-talks-cup-series-rulebook-parity-midweek-races-stage-racing. NASCAR does provide helpful overviews of its inspection processes, and, as shown below, the application of rules in certain instances are instructive. Terrin Waack, Understanding NASCAR car inspections, NASCAR 101, https:// nascar101.nascar.com/2021/06/27/nascar-inspection-101/ (last visited Sept. 18, 2023).
2 E.g. Zach Albert, Cars of Harrison Burton, Brad Keselowski must drop to rear at Atlanta, NASCAR (Mar. 20, 2022) https://www.nascar.com/news-media/2022/03/20/cup-series-2022-atlanta-1-pre-race-inspection/; Kelly Crandall, Byron, Truex will start from rear after failing pre-race inspection, RACER (Sept. 26, 2021), https://racer. com/2021/09/26/byron-truex-will-start-from-rear-after-failing-pre-race-inspection/; Dustin Long, Chase Elliott to start at rear at Watkins Glen after inspection failures, My Twin Tiers (Aug. 8, 2021), https://www.mytwintiers.com/ sports/the-glen-all-access/chase-elliott-to-start-at-rear-at-watkins-glen-after-inspection-failures/.
3 E.g., Kelly Crandall, Briscoe, Hemric cars fail pre-race inspection, RACER (Feb. 20, 2022), https://racer. com/2022/02/20/briscoe-hemric-cars-fail-pre-race-inspection/.
4 Terrin Waack, Understanding NASCAR car inspections, NASCAR.com, https://nascar101.nascar. com/2021/06/27/nascar inspection-101/ (last visited Sept. 18, 2023).
5 Amanda Vincent, NASCAR: Winning Teams that Fail Post-Race Inspection Will Now be Disqualified, The Drive (Feb. 6, 2019), https://www.thedrive.com/accelerator/26370/nascar-winning-teams-that-fail-post-race-inspection-willnow-
be-disqualified.
6 E.g., Dustin Long, NASCAR, Joe Gibbs Racing disclose what led to disqualification, NBC Sports (July 25, 2022), https://www.nbcsports.com/nascar/news/nascar-joe-gibbs-racing-disclose-what-led-to-disqualification (discussing how top two finishers were disqualified after failing post-race inspection).
7 E.g., W. Thomas Chappell, An Appeal of Right—Navigating the New Court of Appeals of Virginia, VBA Journal 24 (Fall 2022); Graham K. Bryant, Appeals of Right in Virginia: Preparing for the New Appellate Landscape, 33 J. Civ. Litig. 427 (Fall 2021).
8 Va. Code §§ 8.01-670, 17.1-410(B), 17.1-411.
9 Embedded appellate counsel at trial may be a way to mitigate this risk. See, e.g., John O’Herron, Prepare to be Prepared: Embedded Appellate Counsel at Trial, 72 Virginia Lawyer 20 (Aug. 2023).
10 More detail on this topic may be found in a thorough article on preservation of error published in this Journal in 2015. Robert B. “Chip” Delano, Jr., Best Practices in Virginia for Preservation of Appellate Error, 27 J. Civ. Litig. 331, 331–44 (Fall 2015).
11 E.g., Evans v. Evans, 300 Va. 134, 151, 860 S.E.2d 381, 390 (2021) (holding that arguments on appeal even couched as related to the main point made at trial may not present a “different twist on a question that is at odds with the question presented to the lower courts” (citation and internal quotation marks omitted)); Bethea v. Commonwealth, 297 Va. 730, 831 S.E.2d 670, 676 (2019) (“Procedural-default principles require that the argument asserted on appeal be the same as the contemporaneous argument at trial.”); Kolesnikoff v. Commonwealth, 54 Va. App. 396, 402–403, 679 S.E.2d 559, 562–63 (2009).
12 Bethea, 297 Va. at 743–44, 831 S.E.2d at 676–77 (“Specific, timely objections are required because they are often resolved, either because the trial court intervenes with a corrective ruling that accommodates the asserted interests of both sides or because opposing counsel gives a winning explanation that moots the objection altogether”); Maxwell v. Commonwealth, 287 Va. 258, 264–65, 754 S.E.2d 516, 519 (2014) (“The purpose of the contemporaneous objection rule is to avoid unnecessary appeals by affording the trial judge an opportunity to rule intelligently on objections.” (citation and internal quotation marks omitted)); Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010); Nusbaum v. Berlin, 273 Va. 385, 402–403, 641 S.E.2d 494, 503 (2007); Williams v. Gloucester Cnty. Sheriff’s Dep’t, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003); Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988) (“Rule 5:25 exists to protect the trial court from appeals based on undisclosed grounds, to prevent the setting of traps on appeal, and to enable the trial judge to rule intelligently, and to avoid unnecessary reversals and mistrials.”).
13 Va. Sup. Ct. R. 5A;18; Va. Sup. Ct. R. 5:25; Toghill v. Commonwealth, 289 Va. 220, 225–26, 768 S.E.2d 674, 676–77 (2015) (finding good cause shown when a United States Court of Appeals for the Fourth Circuit ruling affecting the case was rendered after the trial court’s ruling and appellant had no opportunity to object on that basis); Perry v. Commonwealth, 58 Va. App. 655, 667, 712 S.E.2d 765, 771 (2011).
14 Va. Sup. Ct. R. 5A:18; Va. Sup. Ct. R. 5:25; Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433 (2005) (holding that the ends of justice exception should be applied only “when the judgment of the trial court was error and application of the exception is necessary to avoid a grave injustice or the denial of essential rights”); Lacey v. Commonwealth, 54 Va. App. 32, 46, 675 S.E.2d 846, 853 (2009) (“The ends of justice exception allows the Court to avoid upholding a ‘miscarriage of justice.’ Yet the defendant must affirmatively demonstrate the existence of such a miscarriage, ‘not that a miscarriage might have occurred.’ A trial court’s error standing alone, even when of constitutional significance, does not suffice.”).
15 Va. Sup. Ct. R. 5:17(c)(1) (stating that a petition for appeal to the Supreme Court of Virginia must include with assignments of error “[a]n exact reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken must be included with each assignment of error. If the error relates to the failure of the tribunal or court below to rule on any issue, error must be assigned to such failure to rule, providing an exact reference to the page(s) of the record where the issue was preserved in the tribunal below, and specifying the opportunity that was provided to the tribunal or court to rule on the issue(s)”); Va. Sup. Ct. R. 5A:12(c)(1) (requiring this reference in petitions or appeal seeking discretionary review by the court of appeals); Va. Sup. Ct. R. 5A:20(c) (same requirement for opening briefs to the court of appeals); Va. Sup. Ct. R. 5A:21(b) (providing that appellees assigning cross-error have to provide reference to where the error was preserved).
16 Bethea, 297 Va. at 743, 831 S.E.2d at 676. “‘Not just any objection will do. It must be both specific and timely—so that the trial judge would know the particular point being made in time to do something about it.’” (citing Dickerson v. Commonwealth, 58 Va. App. 351, 356, 709 S.E.2d 717, 719 (2011) (emphases in original)). 17 Id. at 744, 831 S.E.2d at 677.
18 Jacks v. Commonwealth, 74 Va. App. 783, 793, 872 S.E.2d 233, 239 (2022).
19 Spencer v. Commonwealth, 238 Va. 295, 306–307, 384 S.E.2d 785, 793 (1989).
20 Kondaurov v. Kerdasha, 271 Va. 646, 658, 629 S.E.2d 181, 188 (2006); see also Banks v. Mario Indus. 274 Va. 438, 451, 650 S.E.2d 687, 694 (2007) (holding that objections to a jury verdict form must be made before the jury begins deliberations).
21 Smith v. Commonwealth, 296 Va. 450, 462, 821 S.E.2d 543, 549 (2018).
22 Mastin v. Theirjung, 238 Va. 434, 439, 384 S.E.2d 86, 89 (1989) (refusing to consider argument that a jury instruction was confusing where appellant failed to raise the argument at trial); Boyd v. Weisberg, 75 Va. App.
725, 737, 879 S.E.2d 613, 619 (2022) (holding that appellant cannot challenge the phrasing of a jury instruction after agreeing to it at trial).
23 Spitzli v. Minson, 231 Va. 12, 19–20, 341 S.E.2d 170, 174 (1986); Boyd, 75 Va. App. at 738–39, 879 S.E.2d at 619–20 (refusing to apply the “ends of justice” exception to entertain a jury instruction issue on appeal when the issue was not raised at trial).
24 Super Fresh Food Markets of Va., Inc. v. Ruffin, 263 Va. 555, 563–64, 561 S.E.2d 734, 739 (2002). 25 Hawkins v. Town of S. Hill, 301 Va. 416, 433–34, 878 S.E.2d 408, 417 (2022); Bethea, 68 Va. App. at 498, 809 S.E.2d at 689 (“[W]hen a party fails to obtain a ruling on a matter presented to a trial court, there is no ruling to review on appeal.”); Flippo v. CSC Assocs., III, LLC, 262 Va. 48, 60–62, 547 S.E.2d 216, 225 (2001); Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993).
26 Galumbeck v. Lopez, 283 Va. 500, 508–509, 722 S.E.2d 551, 555 (2012); Green v. Commonwealth, 266 Va. 81, 93–95, 581 S.E.2d 834, 841–42 (2003).
27 Linnon v. Commonwealth, 287 Va. 92, 102, 754 S.E.2d 822, 828 (2014).
28 See Manchester Oaks Homeowners Ass’n, Inc. v. Batt, 284 Va. 409, 421, 732 S.E.2d 690, 698 (2012); Johnson v.Commonwealth, 45 Va. App. 113, 117–18, 609 S.E.2d 58, 60 (2005).
29 See Colonna’s Ship Yard Inc. v. Virginia Nat. Gas, Inc., No. 200949, 2021 WL 5829811, at *3 (Va. Dec. 9, 2021).
30 Gunn v. Commonwealth, No. 1003-22-4, 2023 WL 4337674, *2–3 (Va. Ct. App., July 5, 2023).
31 Perry v. Commonwealth, 280 Va. 572, 579–82, 701 S.E.2d 431, 436–37 (2010); Blackman v. Commonwealth, 45 Va. App. 633, 642–43, 613 S.E.2d 460, 465 (2005) (“Thus, an appellee may argue for the first time on appeal any legal ground in support of a judgment so long as it does not require new factual determinations, or involve an affirmative defense that must be asserted in the pleadings, or serve as a subterfuge for a constitutionally prohibited cross-appeal in a criminal case. This disparity in treatment under Rule 5A:18 between appellants and appellees stems from the presumption of correctness of trial court rulings and the corresponding burden on
appellants to rebut that presumption.” (citations, footnotes, and internal quotation marks omitted)); cf. Summers v. Syptak, 293 Va. 606, 612, 801 S.E.2d 422, 425 (2017).
32 E.g., Foltz v. Commonwealth, 284 Va. 467, 472, 732 S.E.2d 4, 7 (2012) (“Consideration of arguments not made in the court below is appropriate under the doctrine of the right result for the wrong reason where additional factual matters are not necessary to resolve a newly-advanced rationale.”).
33 Combs v. Norfolk & W. Ry., 256 Va. 490, 499, 507 S.E.2d 355, 360 (1998).
34 Isaac v. Commonwealth, 58 Va. App. 255, 263, 708 S.E.2d 435, 439 (2011).
35 Stevens v. Commonwealth, 72 Va. App. 546, 557, 850 S.E.2d 393, 398 (2020).
36 Snead v. Commonwealth, 138 Va. 787, 801–802, 121 S.E. 82, 86 (1924).
37 Id.
38 Garlock Sealing Techs., LLC v. Little, 270 Va. 381, 388 620 S.E.2d 773, 777 (2005); Khakee v. Rodenberger, No. 1030-19-4, 2020 WL 890398, at *3 (Va. Ct. App. Feb. 25, 2020) (holding that appellant was barred on appeal from arguing that no material change in circumstances existed because by requesting a change in physical custody appellant necessarily claimed there was a material change in circumstances); Rouse v. Rouse, No. 0033-17-3, 2017 WL 3026784, at *4 (Va. Ct. App. July 18, 2017) (prohibiting husband from arguing that an award of pendente lite spousal support violated the Virginia Code where husband had previously endorsed an order for such support as “requested”).
39 Babcock & Wilcox v. Areva NP, Inc., 292 Va. 165, 204, 788 S.E.2d 237, 258 (2016).
40 91 Va. App. 397, 404, 837 S.E.2d 60, 63 (2020).
41 Id. at 402, 837 S.E.2d at 62.
42 Id. at 404–405, 837 S.E.2d at 63.
43 See Matthews v. Matthews, 277 Va. 522, 528, 675 S.E.2d 157, 160 (2009).
44 Lockhart v. Commonwealth, 34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001); Smith v. Hylton, 14 Va. App. 354, 357–58, 416 S.E.2d 712, 715 (1992) (“It is well settled that when a party’s evidence has been ruled inadmissible, the party must proffer or avouch the evidence for the record in order to preserve the ruling for appeal; otherwise, the appellate court has no basis to decide whether the evidence was admissible. The Court of Appeals and Supreme Court have frequently dismissed appeals because a party failed to proffer the questions and evidence that a presiding officer ruled improper or inadmissible.”); Va. Sup. Ct. R. 2:103.
45 Creamer v. Commonwealth, 64 Va. App. 185, 194–204, 767 S.E.2d 226, 230–31 (2015) (explaining the difference between a mid-trial proffer to aid the trial court in making an evidentiary ruling and a post-trial one of excluded evidence for purposes of appeal); Bailey v. Sarina, No. 0589-21-4, 2022 WL 2812074, at *10 (Va. Ct. App. July 19, 2022).
46 Galumbeck v. Lopez, 283 Va. 500, 508, 722 S.E.2d 551, 555 (2012) (holding that a proffer made outside the presence of opposing counsel was insufficient; “Under our jurisprudence, only a unilateral avowal of counsel, if unchallenged, or a mutual stipulation of the testimony expected constitutes a proper proffer. Absent such acquiescence or stipulation, this Court will not consider an error assigned to the rejection of testimony unless such testimony has been given in the absence of the jury and made a part of the record in the manner prescribed by the Rules of Court.” (citation and internal quotation marks omitted)); Bailey, 2022 WL 2812074, at *14 (holding that the failure to proffer child’s expected testimony to the trial court precluded appellate review of the issue).
47 Howard v. Howard, No. 0819-22-4, 2023 WL 2487315, at *3 (Va. Ct. App. Mar. 14, 2023).
48 Id.
49 Smith, 14 Va. App. at 358–59, 416 S.E.2d at 715 (“A hearing officer or trial judge need not delay or interrupt the proceedings in order to receive a proffer for the record. The proffer may be made post-hearing by presenting the testimony on the record, or by an avowal by counsel, or by submitting a written account or affidavit. However, in this instance, the deputy commissioner rejected any proffer. We reverse and vacate the commission’s ruling and remand the claim so that the commission can receive the claimant’s proffer of her evidence and, to the extent it may become necessary, reconsider and reverse its decision.”).
50 Dixon v. Dixon, 71 Va. App. 709, 716, 840 S.E.2d 1, 4 (2020); Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (holding that a trial court’s ruling is presumed to be correct and the appellant has the burden to present an adequate record to enable the appellate court to review the issue; “An appellate court must dispose of the case on the record and cannot base its decision upon appellant’s petition or brief, or statements of counsel in open court. We may act only upon facts contained in the record.”).
51 E.g., Shvets v. Shvets, No. 0048-22-1, 2022 WL 17980338, at *3 (Va. Ct. App., Dec. 29, 2022) (“With no record of the arguments [appellant] made or the positions he took (or possibly abandoned) at the November 23, 2021 hearing, we cannot know whether he presented the specific arguments he advances on appeal to the circuit court or if his appellate argument repudiates a position that he may have taken in the circuit court, let alone whether the circuit court abused its discretion as he claims.”); Depaz v. Council of Co-Owners of Westerlies Condo. Ass’n., No. 0228-22-4, 2022 WL 14150353, at *2 n.7 (Va. Ct. App., Oct. 25, 2022).
52 Chiles v. Sandidge, No. 1627223, 2023 WL 5533553, at *2 (Va. Ct. App., Aug. 29, 2023); Poole v. On Deck Capital, Inc., No. 1926224, 2023 WL 5534393, at *3–4 (Va. Ct. App., Aug. 29, 2023); Handy v. Commonwealth, No. 0230233, 2023 WL 5353014, at *2 (Va. Ct. App., Aug. 22, 2023); Perfect Landscape, LLC v. Mansour, No. 0248234, 2023 WL 5353029, at *4 (Va. Ct. App., Aug. 22, 2023); Humphries v. Buchanan, No. 0877222, 2023 WL 5353022, at *1 (Va. Ct. App., Aug. 22, 2023), reh’g en banc granted Sept. 19, 2023; Dortch v. Commonwealth, No. 1264221, 2023 WL 5353015, at *2 (Va. Ct. App., Aug. 22, 2023); Brown v. Commonwealth, No. 0005233, 2023 WL 5020485, at *2 (Va. Ct. App., Aug. 8, 2023); Lovelace v. Robbinette, No. 0925223, 2023 WL 5020942, at *2–3 (Va. Ct. App., Aug. 8, 2023); Bowman v. Commonwealth, No. 1126223, 2023 WL 5020468, at *2 (Va. Ct. App., Aug. 8, 2023).
53 Va. Sup. Ct. R. 5A:8(b)(4)(ii); Va. Sup. Ct. R. 5:11(a)(1) (“When the appellant fails to ensure that the record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues related to the assignments of error, any assignments of error affected by the omission will not be considered.”); see also Shiembob v. Shiembob, 55 Va. App. 234, 246, 685 S.E.2d 192, 198 (2009) (“If the transcript is indispensable to the determination of the case, then the requirements for making the transcript a part of the record on appeal must be strictly adhered to. [The] Court has no authority to make exceptions to the filing requirements set out in the Rules.”).
54 Va. Sup. Ct. R. 5A:8(a)–(c).
55 Va. Sup. Ct. R. 5A:8(b).
56 Va. Sup. Ct. R. 5A:8(c).
57 Va. Sup. Ct. R. 5A:8(d).
58 Id.
59 Va. Code § 8.01-675.3; Va. Sup. Ct. R. 5A:6(a) (“Except as otherwise provided by statute, no appeal will be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, or within any specified extension thereof granted by this Court under Rule 5A:3(a), counsel files with the clerk of the trial court a notice of appeal, and at the same time transmits, mails, or delivers a copy of such notice to all opposing counsel.”); see also Va. Sup. Ct. R. 5:9; Va. Sup. Ct. R. 5A:11(b) (providing notice of appeal requirements for workers’ compensation cases).
60 Va. Sup. Ct. R. 1:1B(a)(2)(B).
61 Va. Sup. Ct. R. 5A:6(c).
62 Ghameshlouy v. Commonwealth, 279 Va. 379, 390–91, 689 S.E.2d 698, 703–704 (2010) (“This Court has held that filing a timely notice of appeal is a mandatory prerequisite to an appellate court acquiring jurisdiction over a case. Likewise, the Court of Appeals has recognized that strict adherence to the time requirement of Rule 5A:6 is necessary in order for the Court to acquire jurisdiction over a case. Strict enforcement of the time requirements of the rules governing the notice of appeal is necessary because litigation is a serious and harassing matter, and the right to know when it is ended is a valuable right. Thus, dismissal of an untimely appeal is not merely a mechanical application of a technical rule to deprive a litigant of the right to appeal, rather the purpose of the specific time limit for filing a notice of appeal is not to penalize the appellant but to protect the appellee.” (citations, alteration marks and internal quotation marks omitted)); Poole v. On Deck Capital, No. 1926-22-4, 2023 WL 5534393 (Va. Ct. App. Aug. 29, 2023). But see Va. Sup. Ct. R. 5A:6(a) (with a recent change, indicating that it is possible for the court of appeals to grant an extension of the notice of appeal deadline); Matousek v. City of Virginia Beach, No. 1603-22-1, 2023 WL 6218321, *2 (Va. Ct. App. Sept. 26, 2023) (allowing additional time to note and appeal because appellant had been involuntarily confined); Ghameshlouy, 279 Va. at 394, 698 S.E.2d at 705–706 (holding that technical defects in a timely filed notice of appeal does not prevent the court of appeals from having jurisdiction over the case).
63 Va. Code § 8.01-676.1(A); Va. Sup. Ct. R. 5A:6(a).
64 Va. Code § 8.01-676.1(B).
65 Va. Code § 8.01-676.1(F), (S).
66 Va. Code § 8.01-676.1(P) (holding that an appeal bond or letter of credit and the deadlines for same is not jurisdictional and the deadline for filing may be extended by an appellate judge for good cause shown); Solem v. Taylor, No. 1102-22-2, 2023 WL 2761585, at *2 n.3 (Va. Ct. App., Apr. 4, 2023) (“As our Supreme Court explained in Foster v. Foster, 237 Va. 484 (1989), bonds are not jurisdictional and that the time for filing the bond may be extended by this Court.”).
67 Va. Code § 8.01-676.1(C), (J).
68 Va. Code § 8.01-676.1(F), (S).
69 Va. Code § 8.01-676.1(D).
70 Va. Code § 8.01-676.1(L).
71 Va. Code §§ 8.01-676.1(M); 65.2-706(c).
72 Sheehy v. Williams, 299 Va. 274, 278–82 850 S.E.2d 371, 373–75 (2020).
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