De Novo: A Virginia Appellate Law Blog

De Novo: A Virginia Appellate Law Blog

Jay O’Keeffe practices with Johnson, Rosen & O’Keeffe LLC. in Roanoke, Virginia, where he splits his time between appellate and business litigation. read more

Category Archives: Preservation of Error

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Hicks v. Commonwealth: For the First Time Ever, SCV Applies “Good-Cause” Exception to Contemporaneous-Objection Rule

Posted in Appellate Practice, Opinions and Analysis, Preservation of Error
Frequent fliers in the Supreme Court of Virginia are all too familiar with Rule 5:25, the Court’s contemporaneous-objection rule. The rule is straightforward: No ruling of the trial court, disciplinary board, or commission before which the case was initially heard will be considered as a basis for reversal unless an objection was stated with reasonable… Continue Reading

More on the Contemporaneous-Objection Rule: Brandon v. Cox

Posted in Preservation of Error
The SCV’s second waiver decision from last term, Brandon v. Cox, deals with two questions–one about the use of a motion to reconsider to preserve error (easy), and the other about applying the ends-of-justice exception to the contemporaneous-objection rule (much harder). Brandon was a Section 8 tenant whose landlord withheld her security deposit without justification. The trial court ruled in… Continue Reading

Galumbeck v. Lopez: Supreme Court of Virginia Catches Some Waives

Posted in Preservation of Error
The Supreme Court of Virginia handed down 20 published opinions and 1 published order last session. One of those opinions, Galumbeck v. Lopez, contains enough waiver for the entire term. It’s the most waiverlicious opinion I can remember seeing since Commonwealth Transportation Commissioner v. Target Corp., 274 Va. 341 (2007). Galumbeck suggests that, to borrow a phrase from Frank Friedman, we… Continue Reading

Good Ideas That I Stole From Smart People: Virginia Code Section 8.01-420.3

Posted in Preservation of Error
From an appellate lawyer’s perspective, one of the trickiest parts of trial practice is preserving issues for appeal. And one of the most difficult–and, unfortunately, the most common–variations of the problem arises when the trial court does something important off the record. That can happen in chambers, at sidebar, in the hall, or practically anywhere. The… Continue Reading

Scialdone v. Commonwealth–Best Preservation of Error Opinion Ever?

Posted in Preservation of Error
Back in February, the Supreme Court of Virginia handed down Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010). That decision merits extended discussion. It not only offers the best treatment of preservation of error that we’ve ever seen, but it clarifies Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), thereby dispelling one of… Continue Reading

United Leasing Corp. v. Lehner Family Business Trust: When Renewing Your Motion to Strike, Do Not Renew Your Motion to Strike

Posted in Opinions and Analysis, Preservation of Error
Don’t look now, but the Supreme Court of Virginia may have just redefined clarified the way you argue a motion to strike at the close of all of the evidence. Trial types may want to take some time to read over one of last session’s most important opinions, United Leasing Corporation v. Lehner Family Business Trust. United Leasing is… Continue Reading

Appealing Evidentiary Rulings, Part 2: My Objection Was Overruled–Now What?

Posted in Appellate Practice, Preservation of Error
A few weeks back, we wrote about appealing evidentiary rulings. That post generated a pretty obvious follow-up question: What do you do when your (clearly correct) objection is overruled, and the bad guys are allowed to introduce their (wildly improper) evidence? The problem may be most starkly presented when you file a motion in limine, stating a detailed… Continue Reading

Urban Legends of the Law: The Nusbaum Motion

Posted in Appellate Practice, Opinions and Analysis, Preservation of Error
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… Continue Reading

Bad News for Appellees: Whitehead v. Commonwealth

Posted in Opinions and Analysis, Preservation of Error
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… Continue Reading