PRESENT: All the Justices

RICHARD GORDON FINDLAY
                                               OPINION BY
v.   Record No. 130409                   JUSTICE WILLIAM C. MIMS
                                            January 10, 2014
COMMONWEALTH OF VIRGINIA

                FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal, we consider whether the Court of Appeals

of Virginia erred in holding that the appellant, Richard Gordon

Findlay (“Findlay”), failed to comply with the assignment of

error requirements of Rule 5A:12(c) in his petition for appeal.

           I.   BACKGROUND AND MATERIAL PROCEEDINGS BELOW

      Findlay was convicted of five counts of possession of

child pornography in violation of Code § 18.2-374.1:1.      He

appealed his convictions to the Court of Appeals of Virginia

(“Court of Appeals”).    In his petition for appeal, Findlay’s

sole assignment of error was that the trial court erred in

failing to suppress the evidence seized from his computer.

Specifically, Findlay stated his assignment of error as

follows:

      The Petitioner/Appellant assigns as error the trial
      court’s denial of his Motion to Suppress all of the
      seized videos that came from the defendant’s
      computer, and his computer hard drive, and all
      derivatives thereof.

Immediately following the assignment of error, Findlay provided

an exact reference to the page of the suppression hearing

transcript where the alleged error was preserved.       The argument
section of Findlay’s petition elaborated on the basis of his

challenge to the trial court’s ruling on the suppression

motion; namely, that his consent to the scan, search, and

seizure of his computer was not knowing and voluntary.

     The Commonwealth’s attorney filed a brief in opposition to

Findlay’s petition for appeal, in which he asserted that the

trial court properly denied Findlay’s motion to suppress.    The

Commonwealth’s attorney’s first and primary argument was that

Findlay knowingly and voluntarily consented to the search of

his computer, and therefore the search was valid under the

Fourth Amendment.

     In a per curiam order, a judge of the Court of Appeals

declined to address the Fourth Amendment question, ruling

instead, sua sponte, that Findlay’s assignment of error was

insufficient under Rule 5A:12(c).    The per curiam order held

that the assignment of error “fail[ed] to list any specific

error in the rulings below.   Instead, it is no more than a base

assertion that the award is contrary to law, and Rule

5A:12(c)(1)(ii) makes clear that this is not sufficient to

constitute a proper assignment of error.”

     Findlay timely filed a demand for review by a three-judge

panel.    The panel similarly found that Findlay’s assignment of

error “fail[ed] to list any specific error in the rulings

below.”   By order entered February 5, 2013, the panel dismissed


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Findlay’s petition for appeal for failure to comply with Rule

5A:12(c). 1   This appeal followed.

                             II.   ANALYSIS

        We review questions of law de novo.   See Stevens v.

Commonwealth, 283 Va. 296, 302, 720 S.E.2d 80, 82 (2012).       “A

lower court’s interpretation of the Rules of this Court, like

its interpretation of a statute, presents a question of law

that we review de novo.”     LaCava v. Commonwealth, 283 Va. 465,

469-70, 722 S.E.2d 838, 840 (2012) (collecting cases).

        Rule 5A:12(c) sets out the requirements for petitions for

appeal filed in the Court of Appeals.     It states in relevant

part:

        (1) Assignments of Error. . . . Under a heading
        entitled “Assignments of Error,” the petition shall
        list, clearly and concisely and without extraneous
        argument, the specific errors in the rulings below
        upon which the party intends to rely.

Rule 5A:12(c)(1).    Subsection (ii) of that paragraph of the

Rule goes on to state that

        [a]n assignment of error which does not address the
        findings or rulings in the trial court or other
        tribunal from which an appeal is taken, or which
        merely states that the judgment or award is contrary
        to the law and the evidence is not sufficient. If
        the assignments of error are insufficient or
        otherwise fail to comply with the requirements of

        1
       The per curiam order stated that the petition for appeal
was “denied,” while the three-judge panel’s subsequent order
stated that the petition was “dismissed.” Although this
distinction is immaterial to our resolution of the case, the
correct disposition was dismissal. See Rule 5A:12(c).

                                   3
     this Rule, the petition for appeal shall be
     dismissed. 2

Rule 5A:12(c)(1)(ii).

     Thus, litigants are required to identify with specificity

the error committed by the trial court.   We have adhered to

this mandatory rule with good reason:

     The purpose of assignments of error is to point out
     the errors with reasonable certainty in order to
     direct this court and opposing counsel to the points
     on which [the] appellant intends to ask a reversal of
     the judgment, and to limit discussion to these
     points. Without such assignments, [the] appellee
     would be unable to prepare an effective brief in
     opposition to the granting of an appeal, to determine
     the material portions of the record to designate for
     printing, to assure himself of the correctness of the
     record while it is in the clerk’s office, or to file,
     in civil cases, assignments of cross-error.

Harlow v. Commonwealth, 195 Va. 269, 271-72, 77 S.E.2d 851, 853

(1953); see also Friedline v. Commonwealth, 265 Va. 273, 278,

576 S.E.2d 491, 494 (2003).   Consequently, it is the duty of an

appellant’s counsel “to ‘lay his finger on the error’ in his

[assignment of error],” Carroll v. Commonwealth, 280 Va. 641,

649, 701 S.E.2d 414, 418 (2010) (quoting First Nat’l Bank of

     2
       We note that Rule 5A:12(c) was significantly amended in
July 2010. Prior to amendment, the language of former Rule
5A:12(c), as well as this Court’s counterpart, Rule 5:17(c),
contained no mention of dismissal for failure to comply with
its requirements. By prescribing dismissal of the appeal, Rule
5A:12(c) now “establishe[s] that the inclusion of sufficient
assignments of error is a mandatory procedural requirement and
that the failure to comply with this requirement deprives the
Court of its active jurisdiction to consider the appeal.”
Davis v. Commonwealth, 282 Va. 339, 339, 717 S.E.2d 796, 796-97
(2011).

                                4
Richmond v. William R. Trigg Co., 106 Va. 327, 342, 56 S.E.

158, 163 (1907)), and not to invite an appellate court “to

delve into the record and winnow the chaff from the wheat.”

Loughran v. Kincheloe, 160 Va. 292, 298, 168 S.E. 362, 364

(1933).

     We are of the opinion that Findlay’s assignment of error

complies with the requirement of specificity imposed by Rule

5A:12(c)(1) and by precedent.   Contrary to the Court of

Appeals’ ruling, Findlay’s assignment of error goes beyond the

bare-bones allegations prohibited by Rule 5A:12(c)(1)(ii).

Findlay does not merely allege that his convictions are

contrary to the law.   Likewise, he does not state generally

that the evidence is insufficient.   Rather, Findlay points to a

specific preliminary ruling of the trial court – the trial

court’s denial of his motion to suppress – that he believes to

be in error.   Such specificity adequately puts the court and

opposing counsel on notice as to “what points [appellant]’s

counsel intends to ask a reversal of the judgment or decree”

and prevents them from having to “hunt through the record for

every conceivable error which the court below may have

committed.”    First Nat’l Bank of Richmond, 106 Va. at 341, 56

S.E. at 163 (citation and internal quotation marks omitted).

     The sufficiency of Findlay’s assignment of error is

further evidenced by the fact that the Commonwealth’s attorney


                                 5
clearly understood the issues on appeal well enough to prepare

a focused brief in opposition to Findlay’s petition.

     The Commonwealth now argues that Findlay must go one step

further and state within his assignment of error precisely why

it was error for the trial court to deny the motion to

suppress.   In other words, the Commonwealth suggests that Rule

5A:12(c)(1) demands the inclusion of a “because” clause or its

equivalent in each assignment of error.   We disagree.   In many

instances, such a requirement would be impossible to satisfy,

as trial judges do not always state the specific reasons for

their rulings, even when requested to do so.   When the reasons

for a trial court’s ruling are known, requiring a “because”

clause in each assignment of error would create an unnecessary

procedural trap that may bar appellate review of meritorious

claims.   Where, as here, the assignment of error identifies a

particular preliminary ruling of the trial court, as opposed to

broadly criticizing the trial court’s judgment as being

contrary to the law, it is sufficiently detailed to warrant

consideration on the merits.

     We are guided by our recent decision in Amin v. County of

Henrico, 286 Va. 231, 233, 749 S.E.2d 169, 169 (2013).    In that

case, the appellant included in his petition for appeal to the

Court of Appeals a single assignment of error, which simply

stated, “[t]he trial court erred in denying the motion to


                                6
suppress.”   In a later brief to the Court of Appeals, Amin

added an additional assignment of error arguing that the trial

court’s conviction order was void ab initio.   We acknowledged

that “the Court of Appeals was correct in its holding that an

appellate court must have acquired appellate jurisdiction

before it can hear a challenge to a lower court or agency’s

actions, including a challenge that a lower court’s order is

void ab initio.”    Id. at 236, 749 S.E.2d at 171.   However, we

held that, while “[a] litigant’s failure to include any

sufficient assignment[] of error in a petition for appeal can

deprive th[e] Court of active jurisdiction to consider the

appeal[,]” Amin’s petition for appeal “included one proper

assignment of error. . . . Consequently, the Court of Appeals

had acquired active jurisdiction over Amin’s appeal.”     Id.

(emphasis added).   Thus, while the sufficiency of Amin’s

initial assignment of error was not the focus of our review in

Amin, we necessarily concluded that the assignment of error,

which was similar to Findlay’s, was adequately detailed to

satisfy Rule 5A:12(c)(1) and to give the Court of Appeals

active jurisdiction over the appeal.

     In fact, this Court has repeatedly reviewed assignments of

error stated with comparable detail to Findlay’s assignment of

error.   See, e.g., Branham v. Commonwealth, 283 Va. 273, 720

S.E.2d 74 (2012) (appellant’s granted assignment of error


                                 7
asserted that “[t]he Court of Appeals erred when it held that

the trial court properly admitted the evidence obtained as a

result of the search of Mr. Branham’s person and vehicle.”);

Pettaway v. Commonwealth, 2010 Va. LEXIS 157, at *1 (Apr. 8,

2010) (granting an assignment of error stating that “[t]he

Court of Appeals erred in affirming the trial court’s decision

not to suppress the evidence at the conclusion of the Motion to

Suppress hearing on December 12, 2007.”); Ward v. Commonwealth,

273 Va. 211, 639 S.E.2d 269 (2007) (appellant’s assignment of

error stated: “[t]he Court of Appeals erred in affirming the

trial court’s failure to grant the Appellant’s motion to

suppress the evidence.”); Dixon v. Commonwealth, 270 Va. 34,

613 S.E.2d 398 (2005) (appellant’s assignment of error claimed

that “[t]he trial court erred and abused its discretion by not

suppressing statement of defendant.”). 3



     3
       Although the Commonwealth did not specifically argue that
the assignments of error were insufficient in these cases, we
routinely decline to review insufficient assignments of error
sua sponte. See, e.g., Paugh v. Henrico Area Mental Health &
Developmental Servs., 286 Va. 85, 87 n.1, 743 S.E.2d 277, 278
n.1 (2013); Davis v. Commonwealth, 282 Va. 339, 339, 717 S.E.2d
796, 796-97 (2011); Conyers v. Martial Arts World of Richmond,
Inc., 273 Va. 96, 104 n.4, 639 S.E.2d 174, 177 n.4 (2007). In
fact, the Court is now required to do so in some instances, as
the 2010 amendment to Rule 5:17(c)(1) “established that the
inclusion of sufficient assignments of error is a mandatory
procedural requirement and . . . failure to comply with this
requirement deprives this Court of its active jurisdiction to
consider the appeal.” Davis, 282 Va. at 339, 717 S.E.2d at
796-97.

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     Accordingly, we hold that Findlay’s assignment of error is

sufficiently detailed to satisfy the requirements of Rule

5A:12(c)(1). 4

                          III.   CONCLUSION

     For the foregoing reasons, we will reverse the judgment of

the Court of Appeals and remand with directions to review the

petition for appeal on the merits.

                                              Reversed and remanded.



JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, dissenting.


     Both Rule 5A:12(c)(1) and Rule 5:17(c)(1) require that an

assignment of error list “the specific errors in the rulings

below.”   (Emphasis added.)   The majority, however, relying on

5A:12(c)(1)(ii), holds that it is sufficient for the assignment

of error to merely list the specific rulings below that a party

believes were in error.   In other words, because Findlay

identified the specific ruling, he no longer needs to identify

the specific error in that ruling.    As this holding runs

counter to the plain language of both Rule 5A:12(c)(1) and Rule

5:17(c)(1), I must respectfully dissent.



     4
       Because we conclude that Findlay’s assignment of error
satisfies Rule 5A:12(c), we need not address whether Findlay
should have been given an opportunity to amend his petition
before dismissal of the appeal.

                                  9
     The majority correctly points out, “litigants are required

to identify with specificity the error committed by the trial

court.”   The majority subsequently relies on the portion of the

rule that requires the assignments of error “address the

findings or rulings in the trial court or other tribunal from

which an appeal is taken.”    Rule 5A:12(c)(1)(ii).   The flaw in

this approach is that the portion of the Rule that the majority

relies upon only identifies what actions may be the proper

subject of an appeal: the “findings or rulings” of a “trial

court or other tribunal.”    The majority neglects the remainder

of Rule 5A:12(c)(1)(ii), which states that “[i]f the

assignments of error are insufficient or otherwise fail to

comply with the requirements of this Rule, the petition for

appeal shall be dismissed.”    (Emphasis added).   Admittedly,

Findlay’s assignment of error does identify a ruling of the

trial court he believes was in error.    However, his assignment

of error fails to identify with any specificity what, if

anything, in the ruling is erroneous, as required by Rule

5A:12(c)(1). *


     *
       It is further worth noting that there are many reasons
why a motion to suppress may be granted, meaning that there are
an equal number of reasons why the trial court’s denial of the
motion may be in error. Indeed, in the present case, the trial
court noted Findlay’s exception to the denial of the motion to
suppress “for each of the reasons [counsel] articulated.”
Without more, we have no idea what those articulated reasons
were or which reason(s) Findlay relies upon in his assignment

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          “An assignment of errors is in the nature
          of a pleading, and in the court of last
          resort it performs the same office as a
          declaration or complaint in a court of
          original jurisdiction. The object of an
          assignment of error is to point out the
          specific errors claimed to have been
          committed by the court below in order to
          enable the reviewing court and opposing
          counsel to see on what points plaintiff’s
          counsel intends to ask a reversal of the
          judgment or decree, and to limit discussion
          to those points.”

First Nat’l Bank of Richmond v. William R. Trigg Co., 106 Va.

327, 341, 56 S.E. 158, 163 (1907) (quoting 2 Cyc. Law &

Procedure, 980) (emphasis added).    In other words, it is

incumbent on the party appealing to “lay his finger on the

error.”   Id. at 342, 56 S.E. at 163.

     We have further explained that the purpose of assignments

of error is not to merely identify where in the record the

error occurred or what ruling was erroneous.    Rather,



of error. This illuminates the very reason why assignments of
error must identify with specificity the error in the ruling,
not just the ruling itself.
          Contrary to the majority opinion, requiring an
appellant to state the reasons why the ruling was in error has
nothing to do with the reasons a trial court may or may not
give for its rulings. In taking the position that such a
requirement would “create an unnecessary procedural trap that
may bar appellate review of meritorious claims,” the majority
ignores Rule 5A:18 and Rule 5:25. Both Rule 5A:18 and Rule
5:25 limit an appellant to the arguments raised before the
trial court. Thus, the requirement that an appellant state the
reasons why a ruling was in error is necessarily limited to
those reasons the appellant has raised before the lower court,
not the rationale given by the lower court in making its ruling
as the majority claims.

                                11
           “[t]he purpose of assignments of error is
           point out the errors with reasonable
           certainty in order to direct [the] court
           and opposing counsel to the points on which
           appellant intends to ask a reversal of the
           judgment, and to limit discussion to these
           points.”

Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995)

(quoting Harlow v. Commonwealth, 195 Va. 269, 271-72, 77 S.E.2d

851, 853 (1953)).   See also Chesapeake Hosp. Auth. v.

Commonwealth, 262 Va. 551, 557 n.2, 554 S.E.2d 55, 57 n.2

(2001) (finding an assignment of error was inadequate where

“[n]o one reading the . . . assignment of error could possibly

know” the nature of the argument actually raised); Lamb v.

Commonwealth, 141 Va. 481, 489, 126 S.E. 3, 5 (1925) (holding

the Court will not consider an argument where the assignment of

error fails to identify the nature of the error); Orr v.

Pennington, 93 Va. 268, 269-70, 24 S.E. 928, 928 (1896)

(holding that a proper assignment of error identifies the

errors “clearly and distinctly . . . so that the opposite party

may know what questions are to be raised in the appellate

court”).

     Furthermore, the majority’s reliance on the fact that the

Commonwealth was able “to prepare a focused brief in opposition

to Findlay’s petition” is flawed.    This fact would further

evidence the sufficiency of Findlay’s assignment of error if

the assignment of error was the only information included in


                                12
Findlay’s petition for appeal.   However, as the majority notes,

Findlay’s petition for appeal included an argument section,

which was what the Commonwealth addressed in its brief in

opposition.   The fact that sufficient argument accompanied an

insufficient assignment of error does not cure the defect in

the assignment of error.   Indeed, if this were the standard,

then there would be no need for assignments of error, as the

parties and the Court could rely entirely on the argument

presented in the petition.   Moreover, both Rule 5A:12 and Rule

5:17 must be applied consistently in all cases without resort

to an analysis of the accompanying argument in the petition.

     The majority’s reliance on our recent holding in Amin v.

County of Henrico, 286 Va. 231, 749 S.E.2d 169 (2013), is

misplaced.    Notably, the issue before this Court was whether,

having acquired jurisdiction by granting a petition for appeal,

the Court of Appeals had jurisdiction to consider an assignment

of error that was not raised in the underlying petition but

attacked an underlying order as void ab initio.    Id. at 236,

749 S.E.2d at 191.   The sufficiency of the assignment of error

presented to the Court of Appeals was never before us.    Indeed,

we never even needed to address the sufficiency of that

assignment of error, as the issue was waived because there was

no argument that the Court of Appeals had not properly acquired

active jurisdiction over the appeal.    See Board of Supervisors


                                 13
v. Board of Zoning Appeals, 271 Va. 336, 347, 626 S.E.2d 374,

381 (2006) (holding that jurisdictional elements other than

subject matter jurisdiction are “subject to waiver if not

properly raised”).   Accordingly, our approval of the assignment

of error was merely obiter dicta.     See Harmon v. Peery, 145 Va.

578, 583, 134 S.E. 701, 702 (1926) (“Obiter dicta are such

opinions uttered by the way, not upon the point or question

pending, . . . as if turning aside . . . from the main topic of

the case to collateral subjects.” (citations and internal

quotation marks omitted)).

     Similarly, the Commonwealth never raised an argument

regarding the sufficiency of the assignments of error in any of

the additional cases cited by the majority.    Thus, we did not

“review” any of the assignments of error; we addressed the

issues raised.   In each of those cases, the Commonwealth did

not object to the assignments of error and, as such, the issue

was never before us.   See Board of Supervisors, 271 Va. at 347,

626 S.E.2d at 381.   Indeed, an argument could be made that,

absent a specific challenge from the Commonwealth in the Court

of Appeals, the sufficiency of those assignments of error

became the law of the case and, therefore, could not be

questioned on appeal to this Court.     See Exxon Mobil Corp. v.

Minton, 285 Va. 115, 128 n.1, 737 S.E.2d 16, 26 n.1




                                14
(2012)(quoting Hilton v. Fayen, 196 Va. 860, 867, 86 S.E.2d 40,

43 (1955)).

     In my opinion, Findlay’s assignment of error fails to

identify how the trial court’s denial of his motion to dismiss

was erroneous.   Rule 5A:12(c)(1) requires a party to list “the

specific errors in the rulings below upon which the party

intends to rely” and not just the specific rulings upon which

the party intends to rely.   (Emphasis added.)   Accordingly, I

would affirm the Court of Appeals’ decision to dismiss

Findlay’s petition for appeal.




                                 15
