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VA Bar 2023 > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

how are Contractual Provisions limiting or designating forum treated?

A

Prima facie valid and should be enforced, unless the party challenging enforcement establishes that such provisions are:

unfair
unreasonable
affected by fraud
unequal bargaining power

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2
Q

What needs to be satisfied for PJ in VA

A
  1. VA Statute
  2. Constiution
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3
Q

When does a court have general personal jurisdiction

A
  1. When the person was served with process in the sate
  2. When the person was domiciled in the state.
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4
Q

When does a court have specific Jurisdiction

A
  1. Under the long arm statute
  2. Non Resident Motorist Act (NRMA)
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5
Q

What actions trigger the long arm statute for specific personal jurisdiction

A
  1. tortious injury in state by act/omission in state
  2. tortious injury in state by act or omission out of state
  3. contacts to supply services or things in VA
  4. has an interest in, uses or possesses realty in VA
  5. transacts business in VA
  6. causes injury in VA by breach of warranty where sale was out of sate.
    - seller must
    1. reasonably foresee effect in VA and regularly do or solicit business her or
    2. derive substantial revenue from goods consumed in VA
  7. Domestic relations
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6
Q

What is the non-resident motorist act (NRMA)

A

JX over owner or operator of a Moto vehicle involved in an accident in VA.

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7
Q

What is the constitutional standard for PJ

A

Minimum contacts
JX does not offend traditional notions of fail play and substantial justice
- purposeful availment

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8
Q

What SMJ do VA Circuit Courts have

A

any case except those for which there is exclusive jurisdiction vested in another court.

Mainly monetary claims or claims to specific personal property of 4,500 or less

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9
Q

What SMJ do VA General District Courts have

A

statutory and for causes of action.

Exclusive SMJ for monetary recovery or specific personal property of $4500 or less

Actions at law in tort or contact or in detinue (for recovery of personal property or value thereof for 25k or less

Attachments cases for personal property 25k or less

Interpleader for real or personal property worth 25k or less for earnest money in land sales - no cap.

Rent due (distress claims) or unlawful entry or detainer

Distress warrants ( creditor seizes property)

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10
Q

Appeal from GDC to Circuit Court

A

Absolute right if the amount involved is more than $20

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11
Q

Steps for appealing final judgment to Circuit Court

A
  1. file written notice of appeal with clerk of GDC within 10 days of judgment
  2. post bond and pay writ tax in GDC within 30 days (10 if for unlawful detainer)
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12
Q

When may plaintiff seek to amend her amount in controversy after final judgment in the GDC

A

Only when the defendant appeals

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13
Q

What claims are heard in category A venues?

A

Local actions
- recovery, partition or judicial sale of land, etc., venue is where the land is

Wills, venue is where the will was probated or where it could have been offered for probate.

Writs, venue is where the place where the proceeding to which the writ relates is located.

Injunctions, venue is where the subject proceeding or judgment is pending or was rendered or where the subject dc act is t be done, etc..

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14
Q

What are the types of writs?

A

Mandamus - forcing an officer to perform a ministerial act

Prohibition - stopping lower court from exercising jurisdiction

Certiorari - for review of zoning decisions

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15
Q

Where are category B venues?

A
  1. D resides or PPE
  2. cause of action arose
  3. D register office or appointed agent
  4. D regularly conducts substantial business activity
  5. in case to recover personal property where property is located
  6. in case against fiduciary appointed under court order, where fiduciary qualified.
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16
Q

What happens when a case is filed in an improper venue

A

court will transfer to a proper venue unless it finds good cause to keep the case

even if D objected to venue in a timely manner and he was rights, court will not dismiss

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17
Q

What are the factors for good cause relevant to venue transfer

A
  1. Ps choice of forum against things like
  2. agreement of parties
  3. avoidance of substantial inconvenience
  4. delay in party’s seeking transfer

decision is vested in court’s discretion.

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18
Q

when will a court dismiss a case for forum non convenient

A
  1. cause of action accrued out of state
  2. is brought by an out of state resident
  3. more convenient forum elsewhere
  4. court found good cause and other court has jx
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19
Q

What is a summons and what are they called in the GDC and circuit court

A

Tells D he’s been sued and what to do to avoid default

GDC - warrant or notice of motion for judgment

Circuit Court - Summons

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20
Q

When can injunctions be granted in GDC?

A

Only for injunctions to enforce FOIA requests.

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21
Q

For what claims may the GDC hear actions at law and what is the amount in controversy?

A

Contract
Tort
Detinue - recovery of personal property or value thereof

25k or less

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22
Q

When may the GDC hear attachment cases?

A

for personal property if the value is 25k or less.

If attachment involves realty, regardless of value, it must go to circuit court.

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23
Q

When may GDC hear interpleader cases

A

If the real or personal property is worth 25k or less.

Injunction is not available

May hear interpleaders in any amount for earnest money deposit in land sales contracts

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24
Q

for what claims does the amount in controversy not matter in the GDC?

A

rent due (distress claims) or unlawful entry or detainer and distress warrants - Creditor seizes property

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25
Q

What does a motion craving oyer do?

A

Makes other party produce document.

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26
Q

What is an ad damnum clause?

A

part of pleading demanding damages.

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27
Q

What is the possible final outcome for motions and for demurres?

A

Motions are granted or denied.

Demurres are overruled or sustained.

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28
Q

What is a subpeona duces tecum?

A

command to produce documents or things

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29
Q

What are the elements for Re Judicata (claim preclusion)?

A
  1. Case 1 and 2 were brought by the same claimant against the same defendant.
  2. case 1 ended in a final valid judgement or decree on the merits. (any judgment unless based on jx, venue, or indispensable parties.
  3. case 1 and 2 involved an assertion of the same cause of action.
  • Federal cause of action = same transaction and occurence
  • VA cause of action = conduct, transaction, or occurence
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30
Q

What is the major exception to res judicata collateral estoppel in VA

A

Where personal injuries and property damage arise for the same T/O, they are different causes of action.

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31
Q

Collateral Estoppel (issue preclusion)

A

Precludes re litigation of a particular issue that was litigated and determined in case 1.

  1. case 1 ended in a valid final judgment on the merits
  2. an issue presented in case 2 was actually litigated and determined in case 1.
  3. That issue was essential to the judgment of the case.
  4. being asserted against one who was a party to case 1 ( or represented by that party.
  5. Being asserted by someone who was a party to case 1.
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32
Q

what is required for the circuit court to certify a pretrial interlocutory ruling for appeal?

A

1 A party must request such an order and the court must certify:

  1. there is a substantial ground for difference of opinion.
  2. there is no clear VA appeal ant precedent
  3. determination of the issue will be dispositive of a material aspect of the case, and
  4. The court and parties agree that it is in the parties’ best in interest to seek interlocutory review.
  5. file petition with Supreme Court within 10 days of certificate by Circuit Court.
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33
Q

What is the rule on appeals for final judgments for GDC?

A

Must involve 20$ or more.

Timing:

  1. file notice of appeal in GDC no later than 10 days of entry of judgment
  2. post bond and pay writ tax and costs in GDC no later than 30 days of entry of judgment (10 days in unlawful detained cases.)
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34
Q

What is the rule on appeals for final judgments in the VA circuit court?

A

Appeal goes to Virginia Court of Appeals.

There is a right to appeal from final judgments and rulings or denying injunctions in domestic cases (divorce, adoption, custody, support) and in some administrative matters. But the court of appeals plays no appreciable role in other civil cases.

File notice of appeal in CC within 30 days after entry of appealable decision.

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35
Q

How may appeals from the circuit court be brought to the VA Supreme Court?

A

Allowed in general Civil Cases if they involve at least 500$ on appeal. it is Discretionary.

Pleading:

Preservation of issues - reasonable certainty

Adverse authority - bring to the court’s attention adverse controlling authority.

Steps and timing:

  1. file notice with the clerk of CC no later than 30 days after judgment
  2. Mail or deliver copy of notice to OC.
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36
Q

How may appeals from the circuit court be brought to the VA Supreme Court?

A

Allowed in general Civil Cases if they involve at least 500$ on appeal. it is Discretionary.

Pleading:

Preservation of issues - reasonable certainty

Adverse authority - bring to the court’s attention adverse controlling authority.

Steps and timing:

  1. file notice with the clerk of CC no later than 30 days after judgment
  2. Mail or deliver copy of notice to OC.
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37
Q

What is a nonsuit?

A

P decides to drop the case.

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38
Q

When can P request a nonsuit?

A

once without prejudice unless;

jury is retired from the bar

non-jury case submitted to court for decision

motion to strike evidence is granted

demurrer or special plea is fully argued and awaiting decision.

39
Q

When can plaintiff take a nonsuit?

A

when D files a counter claim or cross claim and only if D agrees or D’s claim can be adjudicated independently.

40
Q

When P takes a nonsuit where must the refile?

A

In same court unless it lacks jurisdiction or venue or unless good cause is shown to litigate elsewhere.

41
Q

When should P refile a nonsuit?

A

within six months or the limitations period, whichever is longer.

42
Q

When is a party in default and how is it entered?

A

A party is in default if they fail to respond to an affirmative pleading within the allowed time.

The court enters default automatically.

43
Q

What does D waive when in default?

A

notice to further proceedings ; unless there is counsel of record.

jury trial at further proceedings.

44
Q

What is the rule on summary judgment?

A

No genuine dispute of material fact and the moving party is entitled to a judgment as a matter of law.

45
Q

What can and cannot a motion for summary judgment be based on?

A

Can - deposition testimony

Cannot - affidavits

46
Q

When must a demand for a jury trial be made in circuit court?

A

Within 10 days after service of the last pleading raising the jury-triable issue(s)

47
Q

What are the different jury sizes in VA CC and when are the invoked?

A

7 - cases for vale of 25k or more

5 – cases for value of 25k or less

if the parties consent a three person jury may be used.

48
Q

during jury selection, what is the voir dire process?

A

Parties may wish to challenge potential jurors.

The challenges may be for cause (for favor), e.g., if potential juror is biased or related to a party.

Each side entitled to unlimited challenges for cause.

Each side gets 3 peremptory challenges. Must be race and gender neutral.

49
Q

When are Jury instructions waived?

A

If not objected to before the jury is charged.

50
Q

When is a jury’s decision binding in matters of equity?

A

Facts regarding a special plea - binding

When court makes finding of conflicting evidence, may refer issue to jury - not binding.

51
Q

In each court, when may a party seek review from that court and when must that court respond?

A

GDC - 30 days after entry of judgment, ruling 45 days from entry of judgment.

CC - 21 day period (in the breast of the court), during this period the court can suspend, vacate , or modify judgment or decree

if court does not respond with any of the above, it loses jurisdiction

52
Q

When may a party file a counterclaim in GDC and CC

A

CC, D must file in 21 days of service of process

GDC, file anytime before trial

for both, must be against the plaintiff or all plaintiffs jointly and P has 21 days from service to respond.

53
Q

How do class actions work in VA

A

They don’t exist.

54
Q

What are the categories of damages for wrongful death?

A

sorrow, anguish, lost companionship

services and income provided by decedent

medical and funeral expenses

punitive damages for wanton and willful misconduct - not if D dies before judgement

The last two must be stated separately.

55
Q

`What are declaratory judgments and where can they be sought?

A

Litigant wants declaration of rights in situation where there’s actual controversy. In that or a later proceeding, can seek consequential relief: e.g., damages or injunction.

56
Q

What are the three methods of Partition of realty

A

partition in kind: court divide up the property among the various interested persons

partition by allotment: court lets one or more of the co-owners have the land and orders them to pay off the others. Court must determine that partition in kind cannot be practicably made first.

Partition by sale: if division in kind and partition by allotment are not feasible, court orders sale of the land, with the co-owners to split the proceeds. This is not favored.

57
Q

What is the VA SOL for personal injures ?

A

2 years

58
Q

What is the VA SOL for non physical personal torts (like malicious prosecution)

A

2 years

59
Q

What is the VA SOL for defamation?

A

1 year

60
Q

What is the VA SOL for property damage?

A

5 years

61
Q

What is the VA SOL for Property damage for sales covered by UCC?

A

4 years

62
Q

What is the VA SOL for fraud?

A

2 years

63
Q

What is the VA SOL for wrongful death?

A

2 years from death.

BUT claim is barred if decedent was injured more than two years before his death and died from those injuries without ever bringing suit.

64
Q

What is the VA SOL for written contracts?

A

5 years

65
Q

What is the VA SOL for unwritten contracts

A

3 years

66
Q

What is the VA SOL for unlawful detainer?

A

3 years

67
Q

How does D raise SOL?

A

Special Plea

68
Q

For SOL does D have to plead specific statute?

A

No. Just allege cause of action is barred.

69
Q

Who bears the burden of proof concerning SOL?

A

Defendant.

70
Q

What is an action to establish boundaries and where may it be brought?

A

declaratory judgment to establish boundaries between contiguous adjoining lands. Order just describes boundary

Circuit Court.

71
Q

What is an ejectment and where may it be brought?

A

Plaintiff must be out of possession of realty and wants to eject the person who is in possession of land. The object is to determine title and obtain possession.

Circuit court

72
Q

What is unlawful detainer and where may it be brought?

A

a landlord sues to oust a tenant and recover for possession of realty that the landlord clearly owns. P can also recover back rent and for damage of the property.

Circuit court and GDC

73
Q

What documents need to be filed in order to perfect an appeal from a divorce decree in circuit court?

A

This type of appeal is an appeal of right to the court of appeals.

To perfect the appellant must file:
A notice with the CC Clerk

state whether a transcript or statement of incidents of the trial is to be filed.

File an appeal bond, a filing fee of $50

file a certificate stating the names, bar number, addresses, fax number, phone number, email addresses of OC, that a copy of the appeal has been mail to OC and if a transcript it to be filed, that a copy has been ordered from the court reported.

74
Q

Which rulings of the trial court will be considered as a basis for reversal on appeal?

A

Those that have been objected to, with the grounds given for objection, unless good cause shown or to enable the court of appeals to attain the ends of justice.

75
Q

In what manner are the rulings of the trial court initially brought to the attention of the appellate court?

A

Appellant’s brief, which includes:

brief statment sof the nature of the case and the material proceedinsg in the trial court

a stament of the errors assigned on teh appeal with reference to the transcripts, written statments, or other document whwer each assigned error was preserved in trial.

A statment of facts
a statemen to principles of law that govern the case,

a short conclusion that states the relief requested.

76
Q

When and where must appellate documents from the circuit court to the court of appeals be filed?

To whom must the copies be delivered?

A

A notice of appeal must be filed with the clerk of the trial court within 30 days after entry of a final judgement.

Copies of notice and certificate must be delivered to all OC at the same time that the notice is filed with the trial court.

Any transcript must be filed with he clerk of the trial court within 60 days after entry of judgment and the notice of that filing must be mailed to all other OC and the clerk of trial court within 10 days

The appeal bond
must be filed with the trial court simultaneously with the notice of appeal.

The filing fee is paid to clerk of the court of appeals and is due when the notice of appeal is presented, but the clerk may file a notice of appeal even when the filing fee is received up to 10 days late.

77
Q

How are contractual provisions limiting the place of court treated?

A

Not against public policy and enforceable.

prima facie valid, unless the party challenging enforcement establishes that such provisions are unfair or unreasonable, or are affected by fraud or unequal bargaining power.

78
Q

How must amended pleadings be filed?

A

With leave of the court which should be liberally granted.

79
Q

When an objection is made to a per-emptory jury strike, how must the no moving party respond?

A

Must be able to set forth non racial reasons for strike.

80
Q

What is the purpose of a demurrer?

A

To test the legal sufficiency of a plaintiffs pleading.

81
Q

Is a ruling on a demurrer a final order?

A

No unless it dismisses the case.

82
Q

When may a nonsuit be granted?

A

before a motion to strike the evidence has been granted

before the jury commences deliberation

before the case is submitted to the judge.

83
Q

Is a nonsuit appealable?

A

Yes, but only if a dispute exists as to whether the trial court properly granted the motion for a non-suit.

84
Q

What is the timline to appeal a nonsuit?

A

30 days of the date of the nonsuit

three months to file a written petition witht he supreme court

Trial court has authority for 21 days after the date of entry.

85
Q

When is a declaratory action available?

A

When standard common law remedies of legal or equitable relief are not available.

86
Q

What is a Bill to quiet title?

A

Typically used to adjudicate title only, often by adverse possession

87
Q

What approach does VA when dealing with a conflict of law?

A

Traditional approach/ vested rights apprach

88
Q

What is the vested rights approach for contracts in conflicts of law?

A

In breach of contracts actions, the forum state applies the law of the state where the contract was executed - unless it is a contract for performance. In that case, the forum court will apply the law of the state where the contract was performed.

89
Q

When is subject matter based on diversity of citizenship improper?

A

when a defendant is a citizen of the original state where the lawsuit was brought.

90
Q

What happens if a an appellate court mistakenly receives an otherwise timely appeal?

A

It shall see that the appeal is transferred to the appropriate court.

91
Q

What are Laches?

A

An equitable defense that applies only to claims where there is no applicable SOL.

Laches bar claims where, essentially, Ps conduct in waiting so long to bring a claim shows either a waiver of the claim by P, or would be so prejudicial to the D in the ability to defend the claim and present evidence that it would inequitable to to allow the claim to go forward.

92
Q

What is a Bill of review

A

A bill in equity that requests the judge to reopen the case in which a final order has been entered.

93
Q

When should a bill of review be filed?

A

A bill of review should be filed within 6 months of the entry of a final order.

VA Bar 2023 (13 decks)

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