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 looks like things could get a little bumpy in the near future.

Here’s a quick breakdown of who did what (including cases with concurrences as split cases):

Chief Justice Kinser

  • Votes Cast: 20
  • In Majority: 20
  • In Dissent: 0
  • In Majority in Split Cases: 7/7
  • Opinions Written: 2

Justice Lemons

  • Votes Cast: 19
  • In Majority: 18
  • In Dissent: 1
  • In Majority in Split Cases: 6/7
  • Opinions Written: 2


Continue Reading January SCV Opinions by the Numbers

Here’s a question: Is it stranger that the Supreme Court of Virginia decides some cases by unpublished order, or that it publishes any opinions at all?

A colleague and I were recently trying to track down a recent unpublished order from the SCV the other day.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

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 Even counting the unpublished opinions that have come down in the meantime, we still have decisions in about 10 cases outstanding from September.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 corrections.)

Another little anomaly: based on a quick flip through the opinions, it doesn’t look like the Chief Justice wrote any of them.

I suspect that any weirdness is a combination of three factors: (1) the recent turnover at the Court; (2) Chief Justice Kinser’s administrative responsibilities, particularly with regard to the rules of evidence and judicial realignment; and (3) luck of the draw.

At any rate, quality is far more important than quantity, and we picked up some fun opinions last week–even a rare dissent!

One of my early favorites is Justice Lemons’ opinion in Landrum v. Chippenham and Johnston-Willis Hospitals, Inc.

A little background: Justice Lemons is President of the American Inns of Court. He is unfailingly gracious, and probably takes civility and professionalism more seriously than anyone you will ever meet.

Also, Landrum looks to be a holdover from June, when the depleted five-member Court was hearing cases. In Landrum, we have a 3-justice majority and a 2-justice concurrence. That alone makes it something of a collector’s piece.

Now back to our story. Landrum was represented by out-of-state counsel, who was pro hac vice. Kind of. The record lacked a motion by local counsel to associate him pro hac, or an order granting such a motion. Both are required by Rule 1A:4(3)(b)-(c). So he was clearly off to a good start.

But I digress. More importantly, so did the Court, in a footnote on the first page of the opinion.

This brings us to one of O’Keeffe’s Immutable Rules of Legal Practice: if you have somehow managed to irritate Justice Lemons to the point that he (politely) goes out of his way to make you look like a fool on page one of a published opinion, you should probably just turn in your bar card.

It’s the judicial equivalent of getting kicked in the nuts by Gandhi.

You must have done something horribly wrong to deserve that.

And indeed, Landrum (or more precisely, her Missouri counsel) did.


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

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 after the jump.

Anywho, back to the madness. Here is how Chief Justice Kinser begins her summary of Rutter‘s holding:

In exercising jurisdiction to determine our own jurisdiction and thereby analyzing the merits of the issue presented on appeal, we conclude that Code Section 8.01-335(B) does not allow the prospective discontinuance or dismissal of an action.

Don’t stare at that sentence too long. You will go insane. Instead, let’s take this one a step at a time:

Rutter brought a wrongful death suit against four defendants: Oakwood, an assisted living facility; one of its contractors, Prism, and two of Prism’s officers, Dixon and Knowlton.

In 2000, Prism filed for bankruptcy. Dixon and Prism filed a notice of bankruptcy, alerting the circuit court that the suit against them was automatically stayed. Reasonable enough.

In response, the circuit court entered an order removing the case from its docket, and purporting to discontinue it if, after three years, there had been no further proceeding under Code Section 8.01-335(B).

In other words, it attempted to enter a self-executing order prospectively discontinuing a case for lack of activity.

Which, you know, sounds like one of those weird things a court shouldn’t be able to do. For ease of reference, we’ll call this ruling the “2000 Order.”


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

I’m pretty sure that written discovery is the worst part of being a trial lawyer. I know for a fact that jurisdictional deadlines are the worst part of being an appellate lawyer.

But just in case you needed further convincing, the Fourth Circuit–as reasonable and user-friendly an appellate court as you will find–just dropped an

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, last month saw the Fourth Circuit issue a rare en banc opinion controlling how cases are removed from state to federal court when multiple defendants are served at different times. The decision reversed a prior panel’s decision last year that rejected the McKinney Intermediate Rule in favor of the last-served defendant rule, discussed below.

You might think such a procedure would be controlled by statute. After all, 28 U.S.C. 1441(a) provides that “the defendant or the defendants” can remove a case.

But Congress, in its infinite wisdom, wrote 28 U.S.C. 1446(b), which sets forth the procedure for doing so, to  address removal only when there is one defendant, not more. That section reads:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

You can see the problem here. With one defendant, it’s straightforward. But what if there are two, three or more defendants?


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

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 (100%)
  • In majority in split cases: 1/1 (100%)
  • Opinions written: 1 (Heinrich Schepers GmBH & Co. v. Whittaker)


Continue Reading November SCV Opinions By the Numbers

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 sign a pleading, they mean that the lawyer has to physically sign the pleading.

In Aguilera, the Court held that a pro se litigant could not authorize a person who wasn’t authorized to practice law in Virginia to sign a pleading on his behalf.

Aguilera asked his neighbor, who was licensed to practice in DC but not Virginia, to sign a complaint. It appears that he did so on the day before the two-year statute of limitations on his claim ran.

The trial court dismissed the case, and the Supreme Court affirmed. It held that Aguilera’s complaint was a nullity because it was not signed by the party or a lawyer licensed to practice in Virginia.

Shipe is marginally more interesting. It addressed the related question of whether a lawyer who’s licensed in Virginia may authorize a lawyer who is licensed elsewhere, but not in Virginia, to sign a pleading on the Virginia lawyer’s behalf.

The answer, as you’ve surely guessed, is no. The trial court held that the complaint was a nullity, entered summary judgment in favor of the defendant, and dismissed the case with prejudice.


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

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 hotel. They question our hero, Eric Amir Ghameshlouy (spellings vary throughout the record), who gives “evasive and conflicting answers” about his name and age. [Note to self: when lying to police, give consistent and responsive answers.]

The police arrest Ghameshlouy and charge him with violating a local ordinance that makes it a misdemeanor to provide false identifying information.

The police also conduct a search incident to the arrest, and find a bag of white powder.

I know what you’re thinking: iocaine powder–odorless, tasteless, dissolves instantly in liquid and among the more deadly poisons known to man?

No, turns out it was just run-of-the-mill yayo. That earned Ghameshlouy a felony indictment under state law, in addition to his misdemeanor charge under local law.


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

While I was off running silly contests and generally doing my best to single-handedly drive up our insurance ratesthe 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 med mal case. The defendant doctor wrote a letter to his lawyer in which he suggested that he may have reviewed the wrong x-ray before assessing the plaintiff. That letter was produced in a workers’ comp proceeding, and it eventually made its way into the plaintiff’s hands.

Walton advised the defendants that she had this letter in her interrogatory answers. About a year and a half later, the defendants moved for a protective order against the use or distribution of the letter. The circuit court granted that order. It found that the letter was privileged and had been involuntarily disclosed, so the privilege had not been waived. The plaintiff went to trial without the letter, and the jury found in favor of the defendants.

On appeal, the Supreme Court reversed. The dispositive issue before it was whether the doctor’s inadvertent disclosure of the letter waived the attorney-client privilege. The Court ruled that it had.


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