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: Opinions and Analysis

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United States v. Carthorne: The Standard of Review (and Good Lawyering) Decide Cases

Posted in Opinions and Analysis, Standards of Review
United States v. Carthorne is one of my favorite recent opinions. It turns on whether the standard for showing plain error is the same as the standard for proving ineffective assistance of counsel. That’s a perfectly nerdly and compelling question in its own right, but it’s not why I like the opinion. Carthorne is a winner… Continue Reading

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

Yelp! Dietz Development, LLC v. Perez

Posted in Opinions and Analysis
The Supreme Court of Virginia livened up the lull between Christmas and New Year’s with an order vacating the preliminary injunction in Dietz Development, LLC v. Perez. Dietz has everything–First Amendment Issues, appellate procedure, and a sexy social media angle. Background It’s probably the latter that first got Dietz into the Washington Post. In short, Perez, a homeowner,… Continue Reading

Conley v. Commonwealth–Reversal by an Evenly Divided Court?!

Posted in Opinions and Analysis
Here’s a fun procedural question for appellate geeks: Can an equally divided Court of Appeals, sitting en banc, reverse a judgment previously entered by a panel of that court? It seems like the answer ought to be a simple no; when an appellate court is evenly divided, the default result is affirmance. But in Conley v. Commonwealth,  things… Continue Reading

And Yet Another Post on Brandon v. Cox

Posted in Opinions and Analysis
Over the summer, we did a couple of posts on Brandon v. Cox, a case that’s important to appellate practitioners who use motions to reconsider to clean up the record before appeal. In Brandon, you’ll recall, the plaintiff raised an argument in her motion for reconsideration that did not appear elsewhere in the record. There… Continue Reading

How Contemporaneous Does that Objection Really Need to Be? Nolte v. MT Technology Enterprises, LLC

Posted in Opinions and Analysis
Two opinions from the SCV’s last session help to clarify a topic near and dear to our hearts: the contemporaneous-objection rule. We’ll address one decision this week, and take up the other one shortly. To preserve an issue for appeal, a party has to object with reasonable certainty at the time of the trial court’s ruling. Rule 5:25. Basically, he or… Continue Reading

January SCV Opinions by the Numbers

Posted in Opinions and Analysis
The Supreme Court of Virginia handed down a remarkable bath of opinions on Friday. The 20 opinions included 7 dissenting opinions, which is highly unusual for a court previous notable for its consensus. Stranger still, the 12 civil cases generated all 7 dissenting opinions (one case, Weedon v. Weedon, generated two separate dissenting opinions). It… Continue Reading

What’s Weirder than an Unpublished Order?

Posted in Opinions and Analysis
Here’s a question: Is it stranger that the Supreme Court of Virginia decides some cases by unpublished order, or that it publishes any opinions at all? A colleague and I were recently trying to track down a recent unpublished order from the SCV the other day. We weren’t having much luck–we couldn’t find it on Virginia Lawyer’s Weekly,… Continue Reading

Benchslapped by a Three-Justice Majority? Landrum v. Chippenham & Johnston-Willis Hospitals, and Other Oddities

Posted in Opinions and Analysis
On Friday, the Supreme Court dropped 13 published opinions and 2 published orders. That’s a bit surprising, because there were 29 cases listed on the September docket. Even counting the unpublished opinions that have come down in the meantime, we still have decisions in about 10 cases outstanding from September. (This is all back-of-the-envelope stuff; I’d welcome… Continue Reading

Rutter v. Oakwood Living Facilities: SCV Exercises Jurisdiction to Determine Lack of Jurisdiction, After Ruling on the Merits

Posted in Opinions and Analysis
In the last batch of SCV opinions, we got a special treat: another foray into the Lovecraftian depths of appellate jurisdiction, Rutter v. Oakwood Living Centers of Virginia, Inc. I would have written something earlier, but I’ve had a busy few weeks–two arguments in Richmond, and the birth of our daughter, Catherine Roberts. Obligatory baby picture… Continue Reading

Barbour Redux: Fourth Circuit Resolves Removal in Multiple-Defendant Cases (Again)

Posted in Opinions and Analysis
As promised, here is a write up on the Fourth Circuit’s recent opinion in Barbour v. International Union. I can’t take credit for this one. It’s a guest post submitted a reader, who would prefer to remain anonymous. Can’t say I blame him/her–heck, I wouldn’t want to be associated with this blog, either: For Civ Pro enthusiasts,… Continue Reading

November SCV Opinions By the Numbers

Posted in Opinions and Analysis
The Supreme Court of Virginia handed down 19 opinions in November. 17 were unanimous, one was split 4-3 (Cordon v. Commonwealth) and the other was split 5-2 (Town of Leesburg v. Giordano). For those who are interested–namely, me–here is a quick breakdown of the November opinions by justice: Chief Justice Hassell Votes cast: 17 In majority: 17… Continue Reading

Only One Thing Counts in This World: Get Them to Sign on the Line Which is Dotted

Posted in Opinions and Analysis
The Supreme Court of Virginia dropped a pair of decisions on us last month that highlight the wisdom of Mr. Baldwin’s* worldview–although, oddly enough, neither came up in the context of contracts. Read together, the holdings in Aguilera v. Christian and Shipe v. Hunter make it clear that when the Code or the Rules require a lawyer to… Continue Reading

Ghameshlouy v. Commonwealth: What Happens if You Name the Wrong Party in Your Notice of Appeal?

Posted in Opinions and Analysis
Ever wonder what would happen if you named the wrong party in your notice of appeal? Thanks to the Supreme Court of Virginia’s February decision in Ghameshlouy v. Commonwealth, we now have the definitive answer: It depends. Our story begins when the Virginia Beach police respond to a call about a domestic altercation at a… Continue Reading

Walton v. Mid-Atlantic Spine Specialists, P.C: Supreme Court of Virginia Defines Test for Inadvertent Waiver of Privilege

Posted in Opinions and Analysis
While I was off running silly contests and generally doing my best to single-handedly drive up our insurance rates, the Supreme Court of Virginia handed down a new batch of opinions last week. Of particular note is Walton v. Mid-Atlantic Spine Specialists, P.C., which addresses the attorney-client privilege, and specifically the issue of inadvertent waiver. Walton is a… 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

Fourth Circuit Adopts Last-Served Defendant Rule; Plaintiffs Despair

Posted in Opinions and Analysis
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… Continue Reading

Please Ignore Shapiro v. Younkin. There Is a Monster at the End of This Opinion.

Posted in Opinions and Analysis
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… Continue Reading

How Now, Black Cow? Supreme Court Releases 4 Unpublished Orders

Posted in Opinions and Analysis
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… Continue Reading