APPEALS – APPEALABLE RECORD – LEE v. LEE — RECONSIDERATION MOTIONS. A very ordinary civil case (landlord-tenant) that might otherwise pass unnoticed holds dire warnings for trial practitioners of every kind. In short, the Virginia Supreme Court advances the sacred banner of Lee v. Lee ever farther into previously unheld territory – the last refuge of the reasonable, conscientious, thorough trial lawyer who is just trying to do his or her job. Or, otherwise put, the “obnoxious loser rule” is extended farther and farther in a most-uncongenial – in fact a rather New-York-City – direction. The Supreme Court majority begins by quoting the simple, obvious statute that did its damnedest to make clear what it meant by repeating it three or four different ways. Space does not permit the quotation here of §8.01-384(A)’s whole text, but suffice it to say that it provides in part: “No party, after having made an objection or motion known to the court, shall be required to make objection or motion again in order to preserve his right to appeal ... .” The Supreme Court immediately follows with “Our rules of Court apply this statute [italics added] such [sic] that ‘[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling’.” Rule 5:25. Here, following what seemed to be the prescriptions in earlier Lee v. Lee cases, the pro se tenant sought to preserve her argument through a written Motion for Reconsideration. This would seem to be a grave challenge and a tall order for the Supreme Court. After all, did not the sacred Lee v. Lee opinion itself (404 SE2d 736, 738 (1991)) specifically list “a motion to reconsider” as one of the “many ways” in which a litigant could satisfy Rule 5A:18 and “make known his objections … and his grounds therefor”? But the majority Justices are equal to it. Ah but, the Supreme Court points out, she did not “obtain a ruling on it.” So, the Supreme Court asks, did she thus in fact avail herself of the opportunity to preserve her argument for appeal? The Court admits that §8.01-384(A) makes it clear that an argument made at trial through a written document, such as a Motion for Reconsideration, is properly preserved unless expressly waived or withdrawn. So now the question, the Court says, is a question of first impression: whether “merely filing” a reconsideration motion properly preserves the point. No, that, it turns out, is not only a waiver, but an express waiver. After all, when all you do is that, then “the record fails to reflect that the trial court had the opportunity to rule upon that motion.” And “because the purpose of Rule 5:25 is to ensure that a trial court has the opportunity...,” the Supreme Court says, the record must effectively demonstrate that the trial court was made aware of the argument that the motion states. Does this mean that Ms. Brandon had to seek a hearing on that reconsideration motion or lose out completely? It sure does. Now believe it or not — and this will be a shock to a large population of trial lawyers, particularly those practicing in counties and cities where a local rule makes absolutely plain that you file the reconsideration motion and must not set it for hearing, and the circuit court will in its wisdom decide sua sponte whether you should get a hearing or not – she “failed to obtain a ruling on her Motion to Reconsider.” And she did not mention any such hearing on her reconsideration-motion in her “written statement of facts.” Thus the Supreme Court points out that nothing in the record indicates that the trial court was made aware of the Motion for Reconsideration and Memorandum in support thereof that were filed. After all, what is a trial court supposed to do, read the file? Section 8.01-384(A) requires that the aggrieved party “make known to the court,” and you don’t do that just by filing some motion. The dissent of Justice Mims is quite short, and to explain it would take longer than to simply quote its four operative sentences, thus: “This is a case in which a landlord withheld a low-income tenant’s security deposit although he was not entitled to it under the law or the lease. Rather than reversing this grave injustice, the Court extends Rule 5:25 in a manner not compelled by our precedents. This case is more amenable to the Rule’s ends of justice exception. While I agree with the Court’s assessment that the exception should be applied sparingly, the unlawful withholding of even $995, the amount in controversy here, is a grave injustice to a person who qualifies for Section 8 housing assistance, as Torri Brandon did.” Brandon v. Cox, 726 S.E.2d 298 (Va. 2012).