Be Careful What You Ask For…

The Court of Appeals does not hand down any published civil opinions today, so let’s talk about an often overlooked aspect of error preservation: endorsements to orders.

Since 1977, Va. Code § 8.01-384 has made formal exceptions to court orders unnecessary so long as you make it clear to the judge what ruling you want. But in Lee v. Lee, a very scary opinion for Virginia attorneys everywhere, the Court of Appeals, sitting en banc, held that endorsing a final order as “seen and objected to” after a trial is not enough to preserve the right to appeal that ruling.[1]

I imagine that calls from panicked lawyers across the Commonwealth began clogging the General Assembly’s phone lines because less than a year later, they amended 8.01-384 to effectively nullify Lee: You do not lose your right to appeal an order unless you expressly agree to it in your written endorsement.[2]

So how do you do that?

As far as endorsements go, they run the gamut from “seen and objected to” to “seen” to “seen and consented to” to “seen and agreed” to “we ask for this.” (I’m sure there are other creative ones out there as well.) In Johnson v. Hart the Supreme Court held that you do not waive your right to appeal by endorsing an order “seen and consented to.”[3]  It held the same in Chawla v. BurgerBusters, Inc. for the endorsement “seen and agreed.”[4]

But surely “we ask for this” counts as an express written agreement that would bar an appeal, no? No. In Cashion v. Smith, an opinion that probably made trial attorneys as happy as Lee v. Lee had made them sad, the Supreme Court held that a plaintiff who had endorsed a final order “we ask for this” had not waived his right to appeal it.[5] They did not view the plaintiff’s endorsement as a request to the trial court to enter the order in substance, but rather a request for the court to simply memorialize its ruling.[6] Good news for anyone who has walked into a hearing with a favorably drafted order, only to walk out with an unfavorably marked up one and failed to change the “we ask for this” endorsement in the haze of defeat.

But don’t relax yet. There was a healthy dissent to the majority opinion. Three Justices maintained that the “only logical” interpretation of “we ask for this” is a request to the court to enter the order “as drafted.”[7] And a 4-3 split does not bode well for a precedent. Of the Justices who decided Cashion, two remain on the court today: Justices Powell and Goodwyn, who both went with the dissent. Given the opportunity, would the Court today throw Cashion out the window?

If Wooten v. Bank of America is any indication, the answer might be yes.[8] Wooten was decided only two years after Cashion, but it was written by Justice Kelsey. This is important because Justice Kelsey replaced retiring Chief Justice Kinser, a member of the Cashion majority.

Wooten involved a divorce decree that the wife endorsed as “seen.” The question was whether this was an affirmative adoption of the decree for purposes of judicial estoppel.[9] The Supreme Court decided that it was not, but not after dropping this ominous footnote referencing Cashion: “We do not address in this case whether the analysis would be different if the order had been endorsed ‘We ask for this’ or ‘Seen and Agreed’ or some statement of similar import.” But feeling the need to make this distinction is probably a signal that it would.

Wooten looked at the meaning of an endorsement from a slightly different angle than Cashion, but the underlying question was essentially the same: What words amount to an adoption of the substance of an order? Given the Wooten Court’s caveat and reference to Cashion, as well as the personnel changes since it was decided, Cashion could soon earn itself a Westlaw red flag.

Of course, that footnote may not be a presage at all. But to avoid being the test case, unless you really, truly like everything in an order, do not “ask for,” “agree with,” or “consent to” it. My advice? Stick with “objected to for reasons stated on brief and at oral argument.”

*This updated article was originally published in VTLAppeal.

[1] Lee v. Lee, 12 Va. App. 512, 515 (1991). The Court’s holding is even harsher when you read the panel opinion and realize that even the appellee agreed that endorsing the order “seen and objected to” should have preserved the appellant’s right to appeal. Lee v. Lee, —Va. App.—, 394 S.E.2d 490, 491 (1990).

[2] See Bryson on Virginia Civil Procedure § 12.02 n.16 (5th ed. 2017) (the 1992 amendment was meant to clarify Va. Code § 8.01-384 in response to Lee).

[3] Johnson v. Hart, 279 Va. 617 (2010).

[4] Chawla v. BurgerBusters, Inc., 255 Va. 616 (1998).

[5] Cashion v. Smith, 286 Va. 327 (2013).

[6] Id. at 336.

[7] Id. at 344 (Powell, Goodwyn, McClanahan, J.J., dissenting).

[8] Wooten v. Bank of America, N.A., 290 Va. 306 (2015).

[9] Judicial estoppel prevents a party from taking inconsistent positions in different proceedings. To apply, the party being estopped must have made a “previous affirmative, inconsistent representation to a court.” Wooten, 290 Va. at 310.