A Trap for the Unwary: Defaulting Related, but Different, Issues on Appeal

Evans v. Evans has rightly received attention for its helpful discussion of when notice by publication is permitted. Less prominently featured, but as important for appellate practitioners, is the Supreme Court’s discussion of when an argument on appeal might be defaulted.

Defaulted issues are the bane of the appellant’s lawyer’s existence. There you are, looking at the legal issues on appeal, sorting out which one might win your client a reversal, and you come across a jewel of an argument. The standard of review is favorable, the legal issues can be clearly presented, and it looks like the lower court should have gotten the issue right. All that sounds like a recipe for reversal.

But your jewel is flawed. And the crack in the crystal is, as likely as not, that the argument wasn’t properly preserved in the lower court. As the Virginia Supreme Court observed in Evans, “[u]nder settled principles, ‘[w]e will not consider an issue raised [by an appellant] for the first time on appeal.’” (Hint: when you see that oft-repeated admonition in your appeal, things are looking good for the appellee.)

In Evans, as noted above, the issue the Supreme Court considered was whether service by publication was permissible in that case. The Supreme Court concluded that Virginia's service of process statutes did not permit notice by publication.

Appellant Evans tried to make an additional argument. She argued that even if service by publication wasn’t permitted under the statutes governing service of process, a different law might save the day. She relied, in this case that turned on a child support award, on a separate statute that permits enforcement of certain child support orders even “when [the decree is] obtained by an order of publication.”

The Supreme Court concluded, though, that Appellant’s argument based on the child support statute was materially different enough from her argument based on service of process law. That was the case even though both statutory schemes related to service of process by publication.

The Supreme Court ruled that the child support statute represented “a wholly independent argument that, if correct, would be dispositive.” Appellant argued, in vain, that her additional argument was “a mere bolstering point ancillary to the main assertion [concerning service by publication]” that she had argued all along. The Court disagreed and held the defaulted argument was a “different twist on a question that is at odds with the question presented to the [lower] court[s].”

In short: close, but not close enough. The child support statute argument was defaulted.

The Supreme Court, while declining to decide the merits of the defaulted argument, characterized it as “thoughtful” and “intriguing.” Hoo, boy. It’s hard to know if that jewel of an argument might’ve won the day. Knowing, though, that the Court thinks the jewel has the fatal flaw of not being preserved is a pretty bitter pill to swallow.

Lessons:

1. If you have an argument to make, make it clearly and specifically in the trial court.
2. Do the same thing in the intermediate appellate court.
3. Don’t assume that your specific arguments are obvious and subsumed within one broadly worded objection.
4. The Supreme Court continues to take a strict view of rules governing preservation of error.