De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

One of the themes that we harp on here at De Novo is the importance of answering the Court''s questions. That usually comes up in oral argument, but sometimes, the Court is so kind as to direct the parties to brief certain issues.

That was the case in Roberson v. Commonwealth, handed down last session. Roberson and its companion case, Ghameshlouy v. Commonwealth, address some interesting but fairly esoteric questions of appellate jurisdiction, procedural defects, and waiver.

And in Roberson, it sounds like the Court really wanted to talk about waiver. At issue in the case was who was the proper appellee, the Commonwealth or the City of Virginia Beach. In its order granting the appeal, the Court directed both entities to appear, and specifically directed the City to address the question of whether it had made an appearance before the Court of Appeals. That could bear on whether it had waived its objection to the any procedural defect in the notice of appeal.

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Civil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun--if dense--opinion handed down on Thursday, the Fourth Circuit adopts the "last-served defendant" rule for removal. Or in geekspeak, it takes a district court up on its invitation "to clarify whether the 'first-filed' 'dictum' in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say."

Short answer: it doesn't. But before we get there, the Fourth Circuit walks us through some removal case law, considers the extent to which earlier panel decisions are binding, and honors the nerdly virtues of close reading and careful research.

A quick refresher, for those of us who slept through civ pro: under 28 U.S.C. 1446, a defendant has 30 days in which to file a notice of removal. But what if  there are multiple defendants, and they are served more than 30 days apart? That's what happened to the defendant unions in Barbour. All three defendants filed a joint notice of removal. They filed it more than 30 days after the first defendant was served, but less than thirty days after the second defendant was served, and before the third defendant was even brought into the case. Was the notice of removal timely?

Turns out there's a Circuit split on that point. The Fifth Circuit applies a "first-served defendant" rule: in cases involving more than one defendant, the thirty days starts running when the first defendant is served. The Fifth Circuit reasons that, since all served defendants must join in the removal petition, the failure of the first defendant to remove within 30 days defeats removal altogether.

The Sixth, Eighth, and Eleventh Circuits, by contrast, apply a "last-served defendant" rule. Those jurisdictions give each defendant 30 days in which to file a notice of removal.

By all appearances, the Fourth Circuit had found a middle ground. Footnote 3 in the McKinney opinion states that, if the first-served defendant does not petition for removal within 30 days of service, the case may not be removed. But if the first-served defendant does petition for removal within 30 days, a later-served defendant may join in the petition or move for remand.

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Last Friday, the Supreme Court of Virginia handed down a batch of eighteen opinions and two published orders. One of them, Shapiro v. Younkin, provides a lucid, well-reasoned treatment of the rules regarding transcripts and written statements of fact.

Please ignore it in its entirety. To paraphrase one of Caroline's favorite writers, there is a monster at the end of this opinion. 

Background

At issue in Shapiro was whether the circuit court erred by dismissing a plaintiff's appeal from the general district court because the plaintiff had failed to secure a court reporter, in violation of the circuit court's rule requiring that a court reporter be present at the trial of all civil cases.

Shapiro brought a landlord-tenant suit against Younkin in general district court, proceeding pro se. He lost and appealed to the circuit court, where he also appeared pro se. The court's local rules required that a court reporter be present at all civil trials, and that a party appealing a GDC case arrange to have a court reporter present at the circuit court trial.

Shapiro failed to arrange for a court reporter, so the circuit court dismissed his appeal with prejudice. Later that day, Shapiro submitted a written statement of facts. The trial court declined to enter the statement. Instead, it wrote on the face of the document that the statement did not accurately reflect the events at trial, which were noted in the court's order.

[Are you still reading? Because there is a monster at the end of this opinion.]

Shapiro--still proceeding pro se--appealed to the Supreme Court. He argued that the dismissal of his case violated Code Section 17.1-128, which provides that the failure to secure a court reporter will not affect the proceeding or trial. He also claimed that the court violated Rule 5:11 by failing to certify his written statement of facts.

Holding

The Supreme Court agreed. It reversed the trial court's judgment and remanded the case, holding that the trial judge had violated both Code Section 17.1-128 and Rule 5:11.

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Last week's post briefly noted Francis v. Giacomelli, the Fourth Circuit's new opinion clarifying federal pleading standards under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Francis merits further discussion, as it may prove to be one of the most influential civil procedure decisions to come out of the Fourth Circuit in years.

Background

Twombly and Iqbal--collectively, Twiqbal--are, of course, the Supreme Court's landmark recent opinions on federal pleading standards. To put them in their proper context, I Shephardized the decisions, along with a few less important opinions to use as benchmarks:*

These results suggest that Twiqbal ranks somewhere between the Bible and the Magna Carta in terms of its importance to Western law (though Virginia state courts remain unmoved, implying that the new standard has not yet crept into state-court practice). The Fourth Circuit's substantive take on Twiqbal will, therefore, prove important to practitioners.

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The Supreme Court of Virginia's new opinion in Hutchins v. Talbert provides a useful cautionary tale for trial lawyers.

Procedurally, the case is a riddle, wrapped up in a mystery, inside a nightmare. Let's start at the beginning. Here's how Justice Goodwyn, writing for the Court, frames the issue presented in the first sentence of the opinion:

[W]hether an order denying a motion to set aside the verdict is a final judgment for purposes of appeal when the trial judge has rendered final judgment in a separate, previously entered order, which is not vacated, suspended, or modified by the order ruling upon the motion to set aside the verdict.

Got that? Yikes. But don't give up yet.

We're obviously somewhere in the no-man's land of procedural default. Let's unpack the facts one step at a time:

• On April 25, 2008, the trial court entered a final order.
• Also on April 25, 2008, the trial court entered an order suspending the final judgment for 14 days, tolling Rule 1:1's 21-day limit and allowing a total of 35 days for entry of an amended final order. In other words, the order was suspended until May 30, 2009.
• Hutchins filed a motion to set aside the verdict.
• On May 28, 2008, the trial court entered an order denying the motion to set aside the verdict, without referring to the final judgment at all.
• On June 19, 2008, Hutchins filed a notice of appeal.

You can see where Hutchins is coming from, right? He thought that because (1) he'd filed a timely post-trial motion, which (2) the trial court ruled on while it retained jurisdiction, (3) the May 28 order was the final order that set the 30-day notice of appeal deadline running. Ergo, his June 19th notice was timely.

Talbert--represented by hometown favorite and all-around good guy Frank Friedman--moved to dismiss Hutchins' appeal. He argued that the suspension order expired on May 9th. Under Rule 5:9, Hutchins had 30 days to file a notice of appeal from May 9th, so his June 19th notice of appeal was untimely.

Talbert was right. Here's how it breaks down:

• Rule 5:9 requires an appellant to file a notice of appeal within 30 days after entry of final judgment or other appealable order--or within any extension granted under Rule 5:5(a). As appellate practitioners know, this deadline is mandatory and jurisdictional.
• Rule 5:5(a) states that "[t]he time period for filing the notice of appeal is not extended by the filing of a motion for a new trial, a petition for rehearing, or a like pleading unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule 1:1 . . ."
• Finally, Rule 1:1 provides that all final judgments, orders, and decrees shall remain under the control of the trial court and subject to be modified, vacated, or suspended for 21 days after the date of entry, and no longer. 

Applying these rules, the Supreme Court determined that the April 25th order was self-executing, and expired by its own terms on May 9. The 21-day period under Rule 1:1 and the 30-day period under Rule 5:9 both began to run on that date. Hutchins missed  both deadlines, so he was out of court. Consistent with prior caselaw (which it didn't cite), the Court made it very clear that only an order vacating, suspending, or modifying the final judgment will toll these deadlines; an order denying a motion to set aside the verdict will not do the trick.

What can we learn from Hutchins?

• Beware of trial judges bearing gifts. Trial court judges will sometimes try to do their dockets litigants a favor by extending deadlines, assuring lawyers that their objections have been preserved, etc. Don't believe them--you must know the rules and the deadlines, and understand which can be finessed and which cannot. For example, once a final order has been entered, only an order within the Rule 1:1's 21-day time period that expressly modifies, vacates, or suspends the final judgment will permit the trial court to retain jurisdiction. See Super Fresh Food Markets of Va. v. Ruffin, 263 Va. 555, 563-64, 561 S.E.2d 734, 739 (2002). It doesn't matter if the trial judge meant well, or honestly intended to extend a deadline--if he or she did not do so effectively under the letter of the Rules, then you can wind up out of court, despite the judge's best intentions.
• Read the rules and count the days. It's simple. It's boring. But you have to do it. All of the very best appellate lawyers I know go back and read the rules again before a key filing--every time. And they count (and recount) days with religious intensity. (Helpful trick: you can use the Outlook calendar's "Go to Date" feature to automatically count days. But still double-check the old-fashioned way.)
• It pays to have an appellate specialist on the trial team. Waiting until an appeal is filed to consult with an appellate specialist is often too late, particularly with respect to issues of finality and preservation of error.

Put slightly differently, the lesson of Hutchins is to trust but verify.

Finally, just in time for the Harvard-Yale game, Super Lawyers will release its inagural ranking of law schools today. According to the WSJ Law Blog, Harvard is #1 and Yale is a lackluster #10. (For all you Wahoos, UVA checks in at a very respectable #4. But you're still #1 at softball.)

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The Supreme Court of Virginia released four unpublished orders on Friday. Steve Emmert has a fun write-up over at his website. The discussion of Browning v. East alone makes it worth reading. Here's a preview:

This is a vehicular-collision appeal, but it really-most-sincerely isn’t your ordinary collision case. The driver of the only vehicle involved struck a stray cow on a dark country road one night. At trial, the defense offered a full set of contributory-negligence instructions, including the duty to keep a lookout. The defense argued that an ordinarily attentive driver should have been able to see the cow standing in the road in plenty of time to avoid hitting it.

The jury bought that argument, and returned a defense verdict. The plaintiff then undertook the arduous chore of convincing an appellate court that contrib wasn’t a legitimate jury issue in this case. She argued that the only evidence about the collision in the record was from her – and she testified that she hadn’t seen the cow until it was 30 to 40 feet away. Given the statute that requires cars to have headlights that illuminate objects 350 feet away, and the fact that the driver had acknowledged in her deposition that she was driving 57-60 mph in a 55 zone (for shame!), the defense is feeling pretty good about its chances on appeal.

 Get ready for a surprise or two . . . .

The cow, of course, was black. Black Angus, actually, like the bovine below. But that's not the surprise.

Update: Alan Cooper from the VLW Blog chimes in with a piece on the subject, complete with a link to the Browning order. 

Having read the order, I am a little surprised that it wasn't published. Browning is nine pages long. It was decided by a split court; Justice Goodwyn dissents, but does not write to explain his reasoning. In that regard, the case reminds me of the recent Zapata decision, also unpublished, and also decided over a naked dissent (that time from Justice Kinser, if I remember correctly).

If the Justices themselves are split over a decision, it seems like a published disposition would be helpful to the bar almost by definition.

As to the merits, the Court focuses on the lack of proximate causation between any contributory negligence and the accident. That seems like the correct analysis. Proximate causation is an important limiting factor in states like Virginia that still adhere to a pure contrib doctrine. Fun bit of trivia: according to Wikipedia, Virginia is one of five states/jurisdictions that still recognize contributory negligence as a complete defense. The others are Saudi Arabia, Somalia, Nigeria, and Kazakhstan Maryland, Alabama, North Carolina, and the District of Columbia.

Practice point: when warding off a contrib defense, focus on proximate causation.

Finally, looping back to our earlier discussion of assignments of error, it's worth noting that the assignments in Browning are relatively skeletal:

• The trial court erred in granting jury instructions relating to contributory negligence (Instructions 16, 17, 18, 19, 20, and 21).
• The trial court erred in granting the defendant's motion in limine to exclude from the jury evidence of the defendant's prior acts of allowing his livestock to stray at other locations.

I would not be confident that those assignments are sufficiently specific. Evidently, they were good enough to get the job done here.

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A few months ago, we wrote about the Supreme Court's treatment of the "right-result-wrong-reason" (RRWR) rule in Whitehead v. Commonwealth. We were relatively critical of the decision, but took heart in the fact that the Commonwealth had just filed a spicy petition for rehearing.

Flash forward a few months. The Supreme Court has reconsidered Whitehead, but the result isn't exactly what the Commonwealth was looking for. In a revised opinion issued last Thursday, the Court stands by its original ruling, but further explains its reasoning. The result benefits pretty much everyone but the Commonwealth.

Whitehead, you will recall, was living with a boyfriend who was breaking into cars and hiding stolen goods at their apartment. That's a dealbreaker. Whitehead was convicted of 32 counts of receiving stolen property. The Commonwealth never argued that Whitehead was involved in the actual theft of any of the items. Instead, it based its case at trial on a theory of "constructive receipt." 

The Court of Appeals affirmed on this ground, and the alternate ground of constructive possession. It also added a third ground, concealment of stolen property.

This did not sit well with the Supreme Court. Writing for the Court, Justice Lemons rejected the constructive receipt theory--which the Supreme Court it has never applied to the offense for which Whitehead was convicted. It then turned to constructive possession, which it has recognized. But since the Commonwealth raised that theory for the first time on appeal, the Court refused to consider it. The Court acknowledged that, "in a proper case," it will affirm where the lower court reached the right result for the wrong reason. And it noted that the RRWR rule applies in civil as well as criminal cases. But the Court declined to apply it in Whitehead because the Commonwealth hadn't argued constructive possession before either the trial court or the Court of Appeals.

The Court then addressed the concealment theory, which the Court of Appeals apparently came up with on its own. Because this argument was not raised either at trial or in the intermediate appellate court, the Supremes held that the Court of Appeals erred by recasting the evidence to support an argument not previously made.

Now we get to the fun part, where the Court clarifies its reasoning. Justice Lemons explains that the different methods of showing receipt of stolen property carry different proof requirements, which involve the presentation of different facts. Because the Commonwealth had limited its method of proof at trial to constructive receipt, Whitehead was never placed on notice that she had to present her own proof to rebut the other theories that it later advanced. The Constitution of Virginia grants an accused the right to demand the cause and nature of his accusation. To allow the Commonwealth to advance different methods of proof on appeal that were never argued in the trial court would deny Whitehead these rights.

What You Should Know About Whitehead Part Deux:

• Right result, right reason. 'Nuff said.
• It's a vast improvement. The added language in the revised opinion shows why this case was not a proper one for the application of the RRWR doctrine--namely, the constitutional concerns implicated in a criminal case, where the prosecution changes its theory of the case midstream. This simultaneously clarifies and cabins the Court's reasoning. One of our concerns with the initial opinion was that it did not seem to give appropriate deference to the lower courts. The expanded opinion addresses this structural concern, and suggests that . . .
• It probably only applies in criminal cases. Both the original and revised Whitehead opinions note that RRWR rule applies in civil as opposed to criminal cases. That gave the Court's refusal to apply the doctrine the troubling potential to bleed over into civil cases. But to the extent that the revised opinion highlights the constitutional underpinnings of the ruling, it probably only applies to criminal cases. That seems like the right result, and an appropriate way to balance competing interests.

When we first wrote about Whitehead, we called it a "scary new Supreme Court opinion." Consider our fears assuaged.

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The Fourth Circuit hands down a new First Amendment decision today in Snyder v. Phelps. 

Snyder is an important case for more than purely doctrinal reasons. It involves the  Westboro Baptist Church, a group noted their quaint habit of proselytizing at funerals. The Church sports a website whose address is literally so offensive that I can't spell it out here, what with this being a family blog. Charming folks, and they seem to have caught the public's attention. As a result of their activities, about 40 states and the federal government have adopted legislation addressing the picketing of funerals. 

Facts

The facts of the case are pretty staggering. Westboro Baptist Church protested the funeral of Matthew Snyder, an enlisted Marine who died in the line of duty in Iraq. The Church showed up at his funeral (at a Catholic church) bearing signs saying things like "Pope in hell, "Thank God for IEDs," and "Thank God for Dead Soldiers." The Church also saw fit to post on its website an "epic," a written piece further trumpeting its, err, message.

Snyder's father sued, alleging five state-law tort claims: defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy. A jury found the defendants liable for $2.9 million in compensatory damages and a boatload of punitives, which were remitted to $2.1 million. The defendants appealed.

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In Howell v. Sobhan, the Supreme Court of Virginia clarifies the law of proximate cause and gives us a new opinion replete with appellate practice pointers.

The Case

The plaintiff, Esther Howell, went to a gastroenterologist for a colonoscopy. He found 3 polyps in her colon, but was only able to remove one. The gastroenterologist sent Howell in for a "probable subtotal colectomy"--yes, it's as bad as it sounds. Before surgery, the gastroenterologist determined that her polyp was benign.

Not that it mattered.

Howell's surgeon, Dr. Sobhan, removed almost all of her colon, reattaching it to her small intestine through an anastomosis. After she was discharged from the hospital, Howell developed a fistula, or leak, that was penetrating her abdomen and coming through her wound. While she was in the emergency room, the incision in her abdomen split open, and "the bowel contents came out" through her incision.

This led to two more surgeries, and ultimately a suit against Dr. Sobhan for removing too much of her colon and using inappropriate anastomosis techniques.

At trial, Howell produced two experts. Both testified that Dr. Sobhan breached the standard of care by removing too much of her large intestine.

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The Court of Appeals of Virginia welcomes us back from summer vacation with a discussion of questions presented that will keep appellate specialists up at night in Carroll v. Commonwealth.

Facts

In 2007, Carroll was charged with raping his stepdaughter twenty-four years earlier. Carroll had initially been charged in 1983, but the case was nolle prossed--only to be reopened later, as the result of a separate rape allegation involving Carroll's sister. In 1984, the government destroyed specimens and other evidence obtained from a physical examination of the victim.

Despite the Commonwealth's evidentiary difficulties, Carroll entered an Alford plea. This allowed him to maintain his innocence while acknowledging that the Commonwealth had enough evidence to convict him. 

Carroll entered into a plea agreement with the Commonwealth, under which he did not admit that he committed the rape and, to the contrary, expressly claimed his innocence. The plea agreement provided that Carroll would satisfy the conditions of his probation, which included that he maintain good behavior, have no contact with the victim, and pay court costs. If he did so, his sentence would be continued while he was on probation, and upon satisfying probation, the government would ask the court to vacate his conviction and accept instead a guilty plea of assault and battery. The agreement included an integration clause: "I understand that the judge will not enforce any agreement not written down here." The plea agreement made no mention of sex-offender treatment.

The trial court accepted Carroll's plea and continued the case for 5 years. One of the conditions of the trial court's order was that Carroll would comply with all rules and requirements set by his probation officer.

Carroll's probation officer mandated that he attend sex-offender treatment, which required him to accept responsibility for his actions. Carroll refused, and was discharged from the program. The trial court issued a bench warrant. At the resulting hearing, Carroll argued that he had not violated his probation because the trial court had accepted his Alford plea. The trial court disagreed. It found that Carroll had violated his probation and convicted him of rape. It sentenced him to 5 years in prison, all suspended.

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The VLW blog reports that the Western District of Virginia dismissed a state-law slip-and-fall case on a Twiqbal motion yesterday. The court's opinion, in a case styled Branham v. Dolgencorp, is here.

It's not too surprising that the Western District would apply the new federal pleading standard--it is, after all, a federal court. But Branham is worth noting for a few reasons:

• It was originally filed in Amherst County Circuit Court, so it at least started life as a state-court case.
• In her 1-page complaint, Branham alleges that the defendant negligently failed to remove a liquid from its its floor or warn her of its presence, She specifically alleges that the defendant and its employees breached their duty to warn her of the dangerous wet floor. As a result, Branham alleges, she fell and was severely injured. I am hardly an expert in premises liability cases, but I would have guessed that this makes out a prima facie case under Virginia law. It certainly compares favorably to the Complaint for Negligence in Form 11 of the Federal Rules of Civil Procedure.
• At points, the district court's opinion reads more like a disposition on summary judgment than a motion to dismiss. In particular, some of the substantive Virginia law it cites seems like it would be more appropriately applied at a later stage in the case. 
• The trial court looks very closely at the complaint, finding that "the Plaintiff has failed to allege any facts that show how the liquid came to be on the floor, whether the Defendant knew or should have known of the presence of the liquid, or how the Plaintiff's accident occurred." That's a lot to ask before discovery.

All in all, it seems like Branham sets the bar awfully high for plaintiffs at the pleading stage. Let's see if the state courts follow suit. Finally, it's good to see that the Twiqbal shorthand is spreading. Nice work, Mr. Vieth!

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The Fourth Circuit's recent decision in The Real Truth About Obama, Inc. v. FEC, which adopts a new standard for issuing preliminary injunctions, will have serious implications for parties seeking temporary injunctive relief in Virginia's state and federal courts.

Background

For the past three decades, a plaintiff trying to secure a preliminary injunction in the Fourth Circuit--and, as a practical matter, in the Virginia state courts--had to satisfy the balance-of-hardship test set out in Blackwelder Furniture Co. of Statesville v. Selig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977).

Under Blackwelder, the first step in the court's analysis is to balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. If that results in an imbalance in the plaintiff's favor, the court moves on to determine whether the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation.

Blackwelder allows for a "flexible interplay" among these elements. The upshot of its approach is that, if the balance of the hardships falls in the plaintiff's favor, he need not show a likelihood of success. It might be enough to show a substantial question. In fact, the Blackwelder court expressly held that the district court had erred by requiring the plaintiff to show a likelihood of success on the merits.

Blackwelder has proven to be a peculiarly influential federal decision. That's because, while the Fourth Circuit has a robust body of temporary injunction case law, the Supreme Court of Virginia has very little. As a result, Virginia trial courts have adopted the Blackwelder test.

The Real Truth About Obama, Inc. v. FEC

For a long time, that was the state of things--although, as Steve Emmert notes in his excellent analysis, Blackwelder certainly had its critics.

Late last year, however, the Supreme Court of the United States clearly articulated the elements necessary to support a preliminary injunction in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365. Primary among these was a likelihood of success on the merits. This was, to say the least, bad news for Blackwelder, which allowed plaintiffs faced with serious harm to elide this requirement.

And so, earlier this month, the Fourth Circuit retired Blackwelder in a case styled The Real Truth About Obama, Inc. v. FEC.

The opinion is not nearly as interesting as it sounds, largely because the appellants had no apparent interest in discussing the real truth about President Obama:

They just wanted to talk about election regulations. 

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My colleague and sometime coauthor, Travis Graham, is an eccentric civil procedure genius and all-around good guy. Among his other hobbies, Travis collects popular misconceptions of the law. He recently told me about a new urban legend making the rounds: the Nusbaum motion. As I understand it, there is a perception brewing in some corners of the bar that you need to file a dedicated pleading in order to protect against procedural default in the wake of Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007).

I have no idea whether this is true. (I've been burned before.) I hope that it's not--or if it is true, that people are just talking about a motion to reconsider. Barring extraordinary circumstances, there's no need to file a separate pleading to secure a ruling and avoid the Nusbaum waiver scenario.

Nusbaum is a fun case. Factually, it's pretty straightforward. Here, Buzz Aldrin re-enacts the pivotal event in the case:  

Buzz took some dramatic license there, but not much. In Nusbaum, the plaintiff's lawyer bumped or shoved opposing counsel in court, before the jury. The trial court immediately declared a mistrial and assessed costs against the plaintiffs.

A procedural nightmare ensued, as the parties debated sanctions for months. For our limited purposes, it is enough to note that Nusbaum failed to raise certain objections contemporaneously. He moved to reconsider, but told the judge that he was not asking the court to change its ruling. By doing so, he waived his argument for appeal.

Here's what you need to know about Nusbaum:

1. It's a waiver case. At bottom, Nusbaum is a waiver case. If you file a motion to reconsider to preserve a point for appeal, but then tell the trial judge that you don't actually want her to reconsider her ruling, you have not preserved your argument. You have waived it. Nothing groundbreaking here. That's because...
2. You always need to get a ruling on your objections. This is true, has always been true, and always will be true. The trial court is entitled to a fair opportunity to rule intelligently on your objections. Otherwise, you will not have anything to appeal. Therefore, you should bject during the proceeding, and later list your key objections on the face of the court's order. You might even consider adding language to the order itself, acknowledging and ruling on the parties' respective objections. If necessary, file a motion to reconsider. But unless something goes horribly wrong, you should not need to move the court to rule on your motions or avoid a waiver. 
3. Don't go overboard noting objections or doing things "for the record." The best thing you can do for your prospects on appeal is to win in the trial court. Do what's necessary in order to preserve error, but don't lose the case trying to win the appeal. And while we're on the subject, you should probably delete the phrase "for the record" from your trial vocabulary altogether. It's a lawyerism. Real people don't talk that way, unless they're being pretentious and/or trying to sound like lawyers. Beginning an argument with "for the record" can even suggest that you are just going through the motions to preserve an argument. That is not effective advocacy--and as Nusbaum shows, it may not be effective preservation of error.
4. It's better with Buzz. Frankly, I like the case better when it has Buzz Aldrin punching jerks in the face. (Thanks to my friend, Jerry, for pointing out the clip and sharing his insights, which have informed this post.)

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A few posts back, we talked about the Supreme Court of Virginia's Fultz case, and discussed the relative evolution of state and federal pleading standards. Mack Sperling wrote in to note a recent case, Holleman v. Aiken, in which the North Carolina Court of Appeals declined to follow Twombly, stating that it lacked authority to adopt a new standard of review for motions to dismiss.

Mack's post on the topic is here. It's worth checking out for a number of reasons:

• The case itself is spectacular. It involves, among many other things, defamation claims brought against one Clayton Holmes Aiken for his failure to endorse and promote an unauthorized biography, Out of the Blue...Clay it Forward--How One Man & His Fans Are Changing the World. The relief sought included an injunction that Aiken help sell the plaintiff's book. As it turns out, North Carolina courts "cannot be used to force celebrities or their family and friends into making endorsements for another person's profit." 
• Apparently, the plaintiff argued that the court should apply Twombly's plausibility standard, rather than existing (and presumably more lenient) North Carolina law that approximates Conley's "no set of facts" language. The Court of Appeals declined to do so, because another panel of the court had already decided the issue of the proper standard of review for a motion to dismiss.
• While it's a little off-topic, a North Carolina appellate decision declining to apply Twombly in the state court context is still persuasive authority over here.
• Finally, Holleman shows what we're missing out on by not having an intermediate appellate court of general jurisdiction.

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Here's a scary new Supreme Court opinion: Whitehead v. Commonwealth. The facts of the case are depressing. Whitehead's  boyfriend was breaking into cars and storing his pilfered goods at her apartment, while helping her pay rent and support their daughter.  Danville's finest intervened, and Whitehead was convicted of receiving stolen property based on a theory of "constructive receipt." The Court of Appeals affirmed her conviction in an unpublished opinion.

The Supreme Court has little trouble reversing on this point, as it has never recognized a theory of constructive receipt for this offense. So far, so good--but there's more. The Commonwealth argued, for the first time on appeal, that Whitehead received the stolen property under a theory of constructive possession. The Court was having none of that.

Justice Lemons, writing for a unanimous Court, acknowledged that the Supremes will affirm a lower court ruling that arrived at the right result for the wrong reason in a proper case. But he explained that cases in which the appellee failed to present the argument in the trial court, so that the trial court did not have an opportunity to rule on the argument, are not proper cases. And he specified that this principle applies in civil, as well as criminal, cases. Because the Commonwealth did not argue constructive possession before the trial court or the Court of Appeals, the Supreme Court declined to consider it. The Court also chastised the Court of Appeals for considering an argument about the concealment of stolen property that the Commonwealth raised in the intermediate appellate court, but not at trial.

All in all, the Supreme Court reversed the judgment of the Court of Appeals affirming Whitehead's 32 convictions for receiving stolen property, dismissed the indictments, and entered final judgment. It remanded for a new hearing on the revocation of Whitehead's previously suspended sentences. (There's a twist to the revocation issue, too, but that's for another post.)

What you should know about Whitehead:

• It's tough on appellees. On a practical level, Whitehead seems to make things awfully hard for appellees. After all, they are the folks who won below. As I read the opinion, it requires appellees to raise all of the arguments that they might want to use on appeal before the trial court. Query how that will play out in practice. Does it mean that, even if your first point is dispositive and you win on it, you still need to raise the other five to preserve them for appeal? After all, the appellate court might disagree with the trial court on your first argument. And if so, do you also need to get a ruling on each of your arguments to preserve them (a la Nusbaum v. Berlin)?   
• It's tough on trial courts. On a structural level, Whitehead doesn't seem to give enough deference to trial courts. The lower court is presumptively correct on appeal, and it is the appellant's burden to show otherwise. Just as the a standard of review will often favor the appellee, procedural default rules shouldn't necessarily apply equally to both parties. It sounds like the Commonwealth has raised a variant of this argument.
• It reviews an unpublished opinion. The Court of Appeals affirmed a 32-count conviction on the basis of a novel legal theory that the Supreme Court has never recognized--and it did so in an unpublished opinion. It seems like Whitehead probably should have made it into the reporter. Commentators have noted the intermediate appellate court's increased disposition of cases via unpublished opinion, and this is a particularly notable example of the trend.
• It's not a done deal...yet. Virginia Lawyers Weekly reports that the Commonwealth has filed a petition for rehearing, using "almost apocalyptic language." I'm sympathetic to the Commonwealth's position (although overblown language in a petition for rehearing is always a recipe for disaster). In the meantime, this is a case worth watching. If anyone out there has access to a copy of the petition for rehearing that they're willing to share, you know where to find me.

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The Supreme Court of Virginia pulls off a neat trick in Fultz v. Delhaize America, Inc. It hands down an opinion that's factually and doctrinally unremarkable--even boring--on its own terms, yet fascinating in the broader context of the current state of the law.

Doris Fultz, accompanied by her 3-year-old grandson, visited a grocery store's ATM. The ATM was bordered by horizontal metal bars about 5 inches off the ground, apparently to protect it from grocery carts. While Fultz was at the ATM, her grandson darted out. She reached for him and tripped over the bars, breaking her elbow.

Fultz sued the store's parent company, Delhaize. Delhaize contended that she was contibutorily negligent for failing to see an open and obvious hazard. The trial court agreed, and granted summary judgment in its favor.

Pretty standard stuff so far. And folks who have been paying even marginal attention to the Court for the past few years should have a pretty good idea where it's going with this one. Summary judgment for contrib as a matter of law? 7-0 reversal and remand, with another great warning about short-circuiting litigation.

So why is Fultz interesting?

• It may help you dodge the ol' Twiqbal. The Court handed Fultz on June 4th--just over two weeks after we received the Supreme Court of the United States' remarkable opinion in Ashcroft v. Iqbal, which further "clarified" (read: heightened) federal pleading standards in the wake of Twombly. Iqbal is a huge deal. It explains Twombly, a 2007 case that has already been cited so many times that you can't Shephardize it. (You just get the "more than 20,000 hits--please restrict your search" message.) One of the trends to watch over the next few years will be the extent to which Twombly and Iqbal seep into state court trial practice and effectively heighten state court pleading standards, as crafty defense attorneys cite cases applying them to state court judges (such maneuver, to be known as a "Twiqbal"). And immediately on the heels of Iqbal, we get a stern opinion from the Supreme Court of Virginia cautioning trial courts about short-circuiting litigation. Of course, Fultz was decided on summary judgment, not demurrer. But it sure suggests that the evolution of these cases over the next few years will be fun to watch.
• It's another arrow in the quiver. On a more practical level, Fultz is another case in the CaterCorp line. It gives us more language about how the Court is increasingly confronted with appeals in which a trial court short-circuited litigation. It also reiterates that summary judgment is a "drastic remedy." Fultz offers another tool for trial counsel resisting dispositive motions, and appellate counsel seeking to reverse summary dispositions.
• Trial court reaction. Finally, as Steve Emmert notes, trial courts will probably react to Fultz by refusing to grant summary judgment in all but the most obvious cases. As he explains, that is consistent with Supreme Court case law, in which summary judgment is disfavored. Fultz will likely further erode the utility of summary judgment as a procedural tool in Virginia.

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