The Court of Appeals handed down Theologis v. Weiler today, a fun opinion in a defamation and business-conspiracy case. The whole opinion is highly recommended. Summary below, but here are the points of greatest interest to appellate practitioners:

  • Right Result/Different Reason. The Court can affirm a judgment sustaining a demurrer only on a ground raised

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

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