I’m a sucker for a good summary-judgment opinion, and the Fourth Circuit delivered last week with Sedar v. Reston Town Center Property, LLC. Sedar transparently applies the summary-judgment to a straightforward slip-and-fall fact pattern, offering real guidance to the bench and bar.

First, the facts: Sedar was walking out of a parking garage with two colleagues when she fell down a flight of stairs. She was knocked unconscious and broke her elbow. Sedar does not remember the fall, and neither of her friends saw exactly what happened–though they could describe Sedar’s general path of travel. Though their testimony differed, both colleagues placed her over loose bricks at the top of the stairs. Other friends soon arrived and took photographs and video. When Sedar came to, she noticed a scuff mark on the top of her shoe. She later hired a structural engineer. He determined that evidence showed unstable bricks and caulk, which constituted a hazard and violated the building and maintenance codes. The engineer concluded that this most likely caused Sedar to fall.

Sedar sued. After discovery, the defendants moved for summary judgment. They also asked the district court to exclude Sedar’s expert.

The district court granted summary judgment, holding that Sedar had produced no evidence that the defendants had actual or constructive notice of the defect. It also noted that Virginia law does not impose liability to fix sidewalk irregularities that are less than an inch or two in size. Finally, the district court concluded that even if Sedar had presented enough evidence of negligence, she’d produced no evidence that the defects caused her fall.

As it turned out, the district court was wrong on each point.

Continue Reading What’s a Scintilla? Sedar v. Reston Town Center Property, LLC

The Supreme Court of Virginia handed down a new opinion today, Albritton v. Commonwealth, that’s notable for two reasons. First, it has a good discussion of bad-brief waiver. Second, it hints that the Supreme Court would not look favorably upon the use of affidavits at summary judgment.
Continue Reading SCOVA on Bad-Brief Waiver and Affidavits at Summary Judgment

Good stuff out of the Fourth Circuit this week–the Court published an opinion addressing two delightfully nerdy topics, Rule 59 motions and the mandate rule, JTH Tax, Inc. v. Aime

Full disclosure: Before reading this opinion, I did not know that the mandate rule was a thing.

I mean, I could have derived it–it seems like a bad idea to ask a lower court to overrule a higher court’s opinion earlier in the exact same case?–but I didn’t know there was actually a rule saying that you can’t do that. Now I do. So I am literally a better lawyer than I was when I started the opinion. Read on if you are dumb like me and could use a powerup.

Continue Reading CA4 on Mandate Rule and Rule 59

Judge hammer.
Judge hammer.

So I’m a big nerd. I like trivia, and I enjoy some of the murkier procedural aspects of appellate litigation–in particular, the outer margins of appellate jurisdiction. As you’ve probably guessed, this makes me very popular at dinner parties.

In December, the Fourth Circuit handed down a nice little

it's our corporate motto.
It’s our new corporate motto.

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

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.


It’s probably the latter that first got Dietz into the Washington Post. In short, Perez, a homeowner, was dissatisfied with Dietz’s work as a contractor, so she posted negative reviews on the online forums Yelp and Angie’s List. She also accused the firm of invoicing her for work that it hadn’t done, and intimated that it may have been involved in stealing her jewelery.

Dietz sued for defamation and asked for an injunction directing Perez to remove the negative postings and preventing her from making similar statements in the future.

Dietz sought a preliminary injunction. The trial court heard evidence and issued an injunction directing Perez to remove or modify certain posts.


First Amendment.

This is going to get ugly.

And so it came to pass. Perez got some help from the ACLU and Public Citizen. She filed a petition for review on her behalf under Code Section 8.01-626, which basically allows immediate review of orders granting or denying an injunction. The statute says that petitions for review are directed to a single justice, but in practice they’re reviewed by panels of three justices.

Perez assembled a very persuasive petition for review, arguing principally that (1) the trial court’s ruling was a constitutionally impermissible prior restraint, and (2) equity will not enjoin a libel.

Perez filed her petition on December 26. Two days later, the Supreme Court of Virginia vacated the injunction. Think about that: two days, starting on the day after Christmas, to review the record, consider the law, and issue a ruling. As a person who’s colossally unproductive during the holidays (witness my blog output), I stand in awe.

Anyway, back to the action. Justices Lemons, Goodwyn, and Powell ruled that the circuit court’s order was defective because it did not specify the time during which the injunction would be effective, as required by Code Section 8.01-624. The Court also ruled that Dietz had an adequate remedy at law.

So what can we take away from Dietz?

Continue Reading Yelp! Dietz Development, LLC v. Perez

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 get a little complicated.

Conley was convicted of two misdemeanor DUIs, then a third felony offense, DUI after being twice convicted of the same offense within 10 years. His direct appeals foundered, but he was eventually able to habeas his way out of the second conviction.

That left a problem: Conley’s third-offense DUI was really a second offense, even though he’d suffered the heightened penalties.

Conley filed a petition for a writ of actual innocence in the Court of Appeals of Virginia.

A divided panel granted his petition and remanded the case for resentencing. The Commonwealth asked for a rehearing en banc.

The Court of Appeals heard argument sitting en banc with 10 judges, and split evenly. It entered an order stating: “Upon rehearing en banc, the petition for writ of actual innocence is dismissed without opinion by an equally divided Court. Accordingly, the order previously entered by a panel of this Court . . . is withdrawn.”

What a minute . . . isn’t that the opposite of what’s supposed to happen?

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

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 she has to give the trial court a fair opportunity to rule intelligently on the issue, at a time when the court can still fix any mistakes.

There are plenty of good policy reasons for this rule. Some of the most frequently cited include:

  1. Protecting the trial court from appeals on undisclosed grounds. If you think back to your days in school, it would hardly be fair if a teacher failed you for giving the wrong answer to a question that he never asked. The same rule works for judges.
  2. Preventing traps on appeal. Generally speaking, you don’t get to spring things on opposing counsel for the first time on review.
  3. Avoiding unnecessary reversals.

The first two are fairness concerns, and the last is a judicial economy issue.

When we are brought in as appellate counsel, one of the first things we look at is whether the appellant’s issues were properly preserved in the trial court. When we represent the appellant and we’re worried about preservation, we also consider whether we can fix any issues with a motion to reconsider, a motion for a new trial, or a similar pleading.

After all, an objection can still be “contemporaneous” so long as it is made when a trial court is still in a position to take corrective action.

But this analysis can get very tricky when a jury is involved. After a trial court has sent an issue to the jury, is it still in a position to take corrective action on points of law for purposes of the contemporaneous-objection rule (e.g., by setting aside a verdict or ordering a new trial)?

In other words, how contemporaneous does your objection really need to be, and how much can you fix if you, as appellate counsel, show up late to the party?

We get some clarity on these questions from Nolte v. MT Technology Enterprises, LLC. The facts of the case are waaay too complicated to recite here, but I commend the case to you. It has discovery hi jinks, heavy sanctions (including a bar on cross-examining opposing witnesses?!), and loads of business guys acting badly.

Sanctions, business torts, and business jerks? Why, yes, Justice Lemons did write the opinion. Why do you ask?

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