The Court of Appeals of Virginia handed down its opinion in Ho v. Rahman today. Ho is an adverse-possession case and a published opinion, but I’m not so interested in the merits. I’m much more interested in the opinion’s treatment of a preservation question.
As a threshold matter, the court addressed the appellee’s claim that the appellant had waived her appeal by signing the trial court’s order “Seen and Objection.” On the appellee’s account, this was insufficient to preserve a point for appeal under Rule 5A:18.
The court summarized its case law, on this point, which generally holds that endorsing an order “seen and objected to” is not specific enough to satisfy Rule 5A:18. That endorsement can be sufficient, however, if the trial court’s order was narrow enough to make the basis of the objection clear.
Here, the CAV found, the trial court’s order addressed only a single issue: the appellee’s plea that the 15-year adverse-possession clock had not yet run. Both parties had briefed the issue. So the basis of the appellant’s objection was clear and her appeal was not procedurally defaulted.
This was the right result, but the court’s reasoning was mistaken. The Supreme Court of Virginia addressed this exact question more than a decade ago in another adverse-possession case, Helms v. Maniple, 277 Va. 1 (2009). In Helms, like Ho, the parties had briefed the issues. In Helms, like Ho, the appellant received an adverse ruling and signed the order “Seen”–which is, if anything, even weaker than Ho‘s “Seen and Objection.” In Helms, like Ho, the appellee contended that this was insufficient to preserve the point for appeal.
But that is where the opinions diverge. Because in Helms, the Supreme Court of Virginia cited Code Section 8.01-384 for the proposition that a party only needs to object once to preserve a point for appeal. That objection came in the brief. After that, the point is preserved for appeal unless affirmatively waived. Signing an order “Seen” does not constitute waiver. And if there was any conflict between Rule 5:25 and Code Section 8.01-384, the statute controlled the rule.
So unless I’m missing something, Ho’s analysis is incorrect. What’s more, the endorsement cases Ho relies on all predate Helms. I haven’t gone back to read them, but I doubt that they remain good law for this line of analysis.
Until CAV gets this sorted out, the safest thing to do is endorse orders “Seen and objected to for the reasons stated in the record, including (1) [first appeal point] and (2) [second appeal point].” This is, of course, a silly waste of time. The trial court has already reviewed and rejected these arguments. It’s not going to change its mind based on your signature block, and you are not adding anything meaningful to the record. But as long as there are opinions like Ho coming out of the CAV, better safe than sorry.