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    Motions to Reconsider

    By Elizabeth Coughter

    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

     

    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;

    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.

    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.)

    (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.

    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.

    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.