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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Snyder v. Phelps: New First Amendment Opinion from the Fourth Circuit

Posted in Opinions and Analysis
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… Continue Reading

Howell v. Sobhan: Appellate Practice Points from the Supreme Court’s New Opinion

Posted in Opinions and Analysis
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… Continue Reading

New Court of Appeals Opinion on Questions Presented

Posted in Appellate Practice, Opinions and Analysis
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… Continue Reading

Twiqbal Alert: Branham v. Dolgencorp, Inc.

Posted in Opinions and Analysis
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… Continue Reading

Bye-Bye, Blackwelder

Posted in Opinions and Analysis
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,… 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

New Virginia Supreme Court Opinion: Fultz v. Delhaize Am., Inc.

Posted in Opinions and Analysis
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… Continue Reading