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ARTICLE:
Motions to Reconsider
by ELIZABETH
COUGHTER & PETER MCINTOSH
Motions to reconsider
at the trial court level are often filed by counsel after
a long and complex preparation for trial and an arduous hearing.
Clients will read the Judge's opinion letter and come to your
office asking you to impress on the Judge that he or she misunderstood
what the testimony was.
What are your chances? How do you advise your
client? And, most importantly, how do you best frame a Motion
to Reconsider if you decide to file one?
Although Motions to Reconsider are not specifically
identified under the Rules of Court, a significant number
of cases regarding Motions to Reconsider are reported in appellate
decisions (sixty-six since February 1997). Before jumping
to the conclusion that Motions to Reconsider are the best
thing since sliced bread consider the results from these sixty-six
cases:
Workers' Compensation: 3 - all denied
Civil Litigation: 27 - 24 denied, 3 granted
Criminal: 10 - 7 denied, 2 granted, 1 granted in part, denied
in part
Domestic: 26 - 17 denied, 8 granted, 1 granted in part, denied
in part
Standard for Appellate Review
The standard for review has been stated in Morris
v. Morris, 3 Va. App. 303, 349 S.E.2d 661 (1986). In Morris,
a divorce and equitable distribution case, the wife sought
to present additional evidence after the evidentiary hearing.
She filed a Motion for Reconsideration of this new evidence.
The Court had not entered its final order on the evidentiary
hearing. The Court refused to grant the Motion as it considered
the wife's additional evidence concerning the source of funds
used to purchase real estate to have been available at the
time of the evidentiary hearing. The Court ruled that at the
evidentiary hearing, which consisted of two full days of testimony,
each party had ample opportunity to present its evidence.
Therefore, it was within the sound discretion of the Court
to refuse to take further evidence on the subject.
This decision was recently upheld in Howe v.
Howe, 30 Va. App. 207, 516 S.E.2d 240 (1999). In Howe, the
trial judge had granted the mother's Motion for Reconsideration.
She asked that the father's child support be changed based
on gifts and insurance proceeds received by the father. There
had been evidence at the original hearing on both issues.
In considering the Motion to Reconsider, the Court took additional
evidence and changed the child support based on father's receipt
of the gifts, but again refused to include the insurance policy
proceeds in father's gross income. On appeal, the Court of
Appeals upheld the trial judge's granting the Motion to Reconsider
citing Morris and stating that the Court's decision to grant
such a Motion to Reconsider lay within the sound discretion
of the trial court.
From a review of the last several years of decisions
from the Virginia Court of Appeals it appears that Motions
to Reconsider are being used by advocates to address the following:
1) errors on the face of opinion letters or orders;
2) after-discovered evidence or fraud;
3) preservation of the right to appeal under Lee v. Lee.
4) questions of law;
I. Errors on the Face
The circumstances in which the proponent for
a Motion to Reconsider is most likely to succeed are those
involving technical error. Clearly, if the trial court has
made an error in math in his/her letter opinion and/or final
order, the trial court is more likely to reconsider the opinion
and correct the error. Not only is there authority for doing
so under a Motion for Reconsideration, but there is also authority
in Virginia Code 8.01-428 or Rule 1:1.
An example of this type of relief may be found
in Cottrell v. Cottrell (Cir. Ct. Albe. Co. letter opinion,
9-9-99). In Cotrell, the trial court reconsidered its original
divorce decree upon argument that the Court calculated tax
considerations for support when no evidence regarding tax
consequences had been presented. The Court, also, had improperly
ordered the husband to maintain his wife as a life insurance
beneficiary when there was no statutory authority to do so.
These errors in math and application of the law are appropriate
issues to review in a Motion for Reconsideration. The Court
in Cottrell corrected its decision regarding child support
and life insurance. See also, Mitchell v. Mitchell, 1998 Va.
App. Lexis 216 (Ct. App. 1998) (Motion to Reconsider granted
when Court included item of personal property twice in its
valuations of those assets.)
As a practice pointer it would always be best
to bring the clerical or technical error to the Judge's attention
prior to entry of a final order. Such Motion should be considered
by the Court without oral argument if the error is clear and
undisputed.
II. After-Discovered Evidence or Fraud
Another circumstance in which a Motion for Reconsideration
will be granted is in the case of after-discovered evidence
or fraud. In Donofrio v. Donofrio (Circuit Court of Loudon
County, July 1999), Judge Chamblin granted the wife's Motion
for Reconsideration upon the following facts. In Donofrio,
which was an equitable distribution/divorce case, the trial
court originally, at the evidentiary hearing and in its original
letter opinion, awarded the husband a monetary award of $4,850.00.
This award was in recognition of the husband's testimony that
he had incurred debt consolidation with a $60,000.00 loan
from his cousin on which he was making payments at the rate
of $644.76 per month.
Subsequent to the evidentiary hearing, the husband
signed a loan application in which he failed to list the debt
to his cousin. At the hearing on the wife's Motion for Reconsideration
the husband testified that he still owed the debt to his cousin
but did not put this information on the loan application so
that he would qualify for the loan despite signing the application
under penalty of perjury. The trial court found as follows:
It makes no difference whether Mr. Donofrio actually
owes or is paying on the debt to his cousin. He cannot gain
an advantage with this Court by testifying that he is obligated
on this debt, and then, two months later, submit a loan application
under penalty of perjury that does not list this debt in order
to get a loan. He offered no justifiable excuse for doing
this. . . . His actions as to the alleged debt to his cousin,
as well as other actions described later, almost completely
undermine Mr. Donofrio's credibility with this Court.
Upon these findings the trial court held that
the debt to the cousin did not exist for equitable distribution
purposes and rescinded the monetary award in favor of the
husband. The Court also reconsidered permanent spousal support,
finding that the husband had deceived the Court regarding
his true income. Another case in line with Donofrio is: Branham
v. Branham, 254 Va. 320 (1997) (Motion to Reconsider based
upon party's subsequent declaration of incompetency overruled
by trial court whose order was reversed on appeal.)
III. Preservation of Appeal Rights per Lee V. Lee
(and Rule 5A: 18)
Issued in May 1991, Lee v. Lee, 12 Va. App.
512, 404 S.E.2d 736 (1991), quickly became a hallmark case
and a warning to attorneys whose practice involves frequent
consideration of whether to appeal decisions of the Circuit
Courts. It was and still is viewed as a draconian decision
for the parties involved.
Rule 5A:18 requires that potential errors be
brought to the attention of the trial court before they can
be the subject of an appeal. It is often called the contemporaneous
objection rule, when applied in jury trials to the issues
of admissibility of evidence. Lee addresses non-jury decisions
and how advocates must make clear to the trial judge that
his/her decision is wrong.
The majority in Lee refused to hear an appeal
of an equitable distribution case because the appellant had
merely endorsed the order as "Seen and objected to".
It is interesting that the appellee did not assert Rule 5A:18
as a bar to the appeal. As noted in the dissenting opinion
the parties had:
agreed upon a procedure whereby they identified four items
of property which were in dispute as to classification or
value and each party alternately presented evidence in support
of his or her position as to each item of property. The
admissibility of that evidence was not disputed. No objections
were made, the Court classified and valued the property,
determined the rights of the parties, made an award and
gave its reasons for those determinations. These findings
were incorporated in a Final Decree to which the appellant
noted his objection.
(Id. at 517, dissenting opinion)
The majority opinion in Lee brushed aside the
conduct of the trial cited in detail in the dissenting opinion
and held that the record in the case containing the Bill of
Complaint, Answer and Cross-Bill and a transcript of the evidence,
but not closing arguments, was insufficient to satisfy Rule
5A:18. Citing Code 8.01-384, the Lee majority held that a
party must "make(s) known to the Court the action which
he desires the Court take or his objections to the action
and his grounds therefore."
The unsurprising result of Lee was that it became
almost common practice, at least in the domestic relations
bar, in the years after 1991 to self protectively file a "Motion
for Reconsideration" as a way to specifically identify
the perceived errors of the trial court. The Lee majority
opinion does provide advocates with various ways to comply
with Rule 5A:18. These alternatives include: Motions to Strike
(transcript); Objections in closing arguments (transcripts);
proffering an Order containing one's objections; and finally,
endorsing Orders with detailed Objections and the reasons
therefore. It is also not surprising why many advocates selected
the Motion to Reconsider as the best remedy. It actually gives
you another bite at the apple. It clearly satisfies Lee especially
since the other side is bound to respond, and maybe, just
maybe, the judge would change his/her mind.
We all assume that these Motions to Reconsider
are not really directed to the trial court. They are drafted
with one eye on the evidence in the record, one eye on the
intent of Rule 5A:18, and still a third eye on the Court of
Appeals panel. Not surprisingly, these Motions are rarely
granted, if seriously considered.
IV. Questions of Law
What if you really believe the Judge misapplied
the law to the facts in your case? As noted above, your chances
of success with Motions to Reconsider are relatively small.
The majority of the reported cases appear to deal with true
Motions to Reconsider not cases involving technical, mathematical
errors or new evidence. The Motion really is saying "Judge,
you got it wrong." If this is your intent you should
note the success rate cited in the beginning paragraphs. It
is fair to say that whenever you are asking a Judge to truly
reconsider her or his application of the prevailing law to
the facts, your task is as daunting as that of Sisyphus.
You should note that one retired Judge with
whom we spoke called to our attention the case of Hechler
Chevrolet, Inc. v. GM, 230 Va 396, 337 S.E.2d 744 (1985).
Its language is compelling:
The trial courts labor under increasing burdens
and judicial economy requires that litigants have one, but
only one, full and fair opportunity to argue a question of
law. The time required to have a litigant reargue a question
a second time must be taken from other litigants who are waiting
to be heard. For this reason Motions to Reconsider are not
favored.
This should not be a surprising holding, especially
to those who practice in the area of divorce, equitable distribution,
support, custody, etc. It has been our experience that in
Circuit Court cases of substantial import, the trial courts
spend considerable time hearing evidence and argument before
retiring to deliberate all that has been presented. It is
only thereafter that we as advocates receive that thick envelope
with the opinion letter which is opened with at least a slight
sense of anxiety.
In our informal discussions with several retired
Circuit Court judges, it is our clear sense that the message
from the Bench to the advocate community would be "Be
prepared the first go round and spare us from revisiting the
same field of battle. If my interpretation is wrong, the Court
of Appeals will surely tell me so".
That scenario is exactly what happened in Supinger
v. Stakes, 255 Va. 198, 495 S.E.2d 813 (1998). The plaintiff
in a personal injury case received a jury verdict she deemed
inadequate. She moved for a new trial but the Judge used Virginia
Code 8.01-383.1(B) to increase the award (additur) over plaintiff's
objection. She filed a Motion to Reconsider alleging in part
that said ruling and the statute violated her right to a jury
trial. Her Motion, not surprisingly, was denied. On appeal
the Supreme Court reversed the trial court with an opinion
which provided a detailed statutory analysis of the question
of first impression.
Lesson learned: try the Motion to Reconsider
but expect to have to appeal on questions of law, especially
questions of first impression.
Conclusion
As always is it better to be fully prepared
so that your cogent arguments are clearly articulated to the
trial court before, during and after the presentation of evidence.
In a perfect world, there would be relatively few occasions
for Motions to Reconsider. However, trial practice, be it
criminal, domestic relations or other civil litigation, rarely
proceeds in the manner that we plan. There are judges' schedules,
illnesses, emergencies and other cases, difficult clients
or fact situations, any or all of which cause havoc in the
days immediately preceding your full day trial.
It is, of course, vital that a Motion to Reconsider,
when deemed appropriate, be filed as soon as possible after
the issuance of a letter opinion. If your case involves the
direct entry of an order by the Court, you must be aware of
the ironclad dictates of Rule 1:1. You dare not allow the
order to remain in force after twenty-one (21) days. The mere
filing of a Motion cannot extend the period of time allowed
for in Rule 1:1.
It is our experience that most judges will seriously
consider a Motion to Reconsider when the goal is a clarification
of the Court's calculations or the correction of a misunderstanding
by the Court of either counsel's factual presentation or exhibits.
Remember the dictates of Massie v. Firmstone, 134 Va 450 114
S.E. 652 (1922), your client cannot rise above the evidence
which he or she presented at the hearing, even if the facts
presented by another witness or the other side would provide
for a better result.
Lucky is the advocate who is provided the type
of after-discovered evidence of apparent fraud that was the
case in Donofrio. We all know that judges do not look kindly
upon witnesses or parties whose testimony turned out to be
not only blatantly self-serving (a fair amount of that is
expected) but also knowingly false.
You are a rare and fortunate advocate if you
find a Circuit Court judge in Virginia who enjoys revisiting
the interpretation of a case and actually rethinking his or
her application of the law to the facts. Most, by reason of
their heavy workload, simply do not have the time it takes
to make the difficult decisions they are called to make and
then to sincerely and sensitively review the evidence a second
time and revisit the interpretive thought process.
Lastly, to the extent that the conduct of your
trial leaves you questioning whether you are close to noncompliance
with Rule 5A:18, it would be in order to file the briefest
possible Motion to Reconsider outlining the perceived errors
of the trial court and the requested changes which you feel
give your client a reason to spend the additional resources
to hit the road to Richmond.
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