Civil Procedure - Virginia Flashcards
Counterclaims
Issue: Whether a counterclaim must arise out of the same transaction identified in complaint
Under VA, counterclaims are permissive. A defendant may plead as a counterclaim any cause of action the D has against P whether or not it arises out of same transaction that is the subject of P’s complaint and whether it is in tort or contract
What documents must be filed by Appellant to perfect an appeal of right?
An appellant must file a notice of appeal with the circuit court clerk
The Notice must state whether a transcript or statement of incidents of the trial is to be filed
The appellant must also file an appeal bond, a filing fee of $50, and state the contact information of opposing counsel, and whether a transcript will be filed
A copy of the notice of appeal also must be mailed or delivered to opposing cunsel, and, if a transcript is to be filed, that a copy has been ordered from the court reporter
When and where must documents be filed and to whom must copies be delivered or mailed to, to perfect an appeal?
A notice of appeal must be filed with the clerk of the trial court within 30 days after entry of final judgment
The filing of the notice perfects the appeal
Copies of the notice and the certificate must be delivered to all opposing counsel
Any transcript must be filed with the clerk of trial court within 60 days after entry of final judgment
An appeal bond also must be filed with the notice of appeal
The filing fee is paid to the clerk for 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 1o days late
Transfer Case
Contractual provisions to Venue
A contractual provision designating a forum for all contract disputes is not against public policy and should be enforced by the court unless the party challenging enforcement establishes that such provisions are unfair or unreasonable, or are affected by fraud or unequal bargaining power
Transfer is within sound dicretion of the court
Transfer Case
No preferred venue
When there is no place of preferred venue, VA code states, “a suit may be brought in a permissible place of venue, which includes the place of defendant’s principal place of business, any place where defendant regularly conducts substantial business activities, the place where the cause of action arose, and the place where the delivery of the goods involved a dispute were received
If the court sustains a motion objecting to venue, the court must …
Transfer the action to a proper venue
Forum Non Conveniens
A dismissal (not a transfer) of a case because it cannot be conveniently brought anywhere in the Virginia court system
Amendments
Amended complaint
No amendment may be made to any pleading after it is filed except with leave of court, which should be liberally granted
Peremptory Strikes Objection
The exercise of peremptory challenges to prospective jurors must be on racially or ethnically neutral grounds
When an attorney objects, opposing attorney must be able to set forth nonracial reasons for his peremptory strikes
Demurrer Appeal
The purpose of a demurrer is to test the legal sufficiency of a plaintiff’s pleading
In a civil case originating in the circuit court, an appeal can only be taken of a final judgment entered by the trial court
A ruling upon a demurrer is not a final order unless it dismisses the case
Nonsuit
The right to take a nonsuit is absolute under VA law as long as it is done Before (1) a motion to strike the evidence has been sustained, (2) the jury commences deliberation, or (3) the case is submitted to the judge
An order of a nonsuit is a final, appealable order, but only if a dispute exists as to whether the trial court properly granted the motion for a nonsuit
Challenging Grant of Nonsuit
Remedies
Filing a notice of appeal or move for the trial court to reconsider its ruling
File notice of appeal with the clerk of trial court within 30 days of the date nonsuit was given. The filing of notice of appeal perfects the appeal
Alternatively, the trial court has authority over the case for 21 days after the date of entry of a final judgment so can file with the trial judge a motion to reconsider the order within 21 days of the date of nonsuit
Declaratory Judgment
Unlawful Detainer
Partition
Bill to Quiet Title
Action is typically used to adjudicate title only, often by adverse possession
There is no equity jurisdiction to adjudicate title as between “hostile claimants” because such action would supplant the legal action for ejectment
A suit for quiet title may not be used as a substitute for an action in ejectment
Thus, may not bring an action to quiet title to determine title and right to possession where there is a hostile claimant
Even if succeeding in quieting title, there would be no remedy of possession or damages under bill to quiet title
Ejectment
An action where a person wrongfully ejected from property seeks to recover possession and damages
The object of the action is to try title and obtain possession of a piece of land together with damages for withholding possession
To succeed, the palintiff must be out of possession and show a superior right to possession (interest in land and right to recover)
Preferred venue lies in the court where the land is located
What kind of court proceeding under Virginia law can a person with interest in land/property initiate to bring about the sale of property, if another person with interest in that land has a disability/incapacitated?
And who would be necessary parties under such proceeding?
A proceeding under VA code, dealing with the sale of lands of persons under disability, which requires the filing of a complaint in the circuit court by a fiduciary of any person having interest in the proceedings, against the person under a disability
In this suit, all other potential parties in interest must be joined as defendants if they are not already plaintiffs, and all those who would be heirs or distributees, of the person under disability upon their death, must be joined as well
Also, necessary is a guardian ad litem for “any person unknown or person yet to be born or created”
What must a person prove in order to secure approval of the sale of a property in a proceeding intitiating a sale of property against a person with a disability with interest in land?
Must prove “independently of any admissions in the pleading that the interest of the plaintiff will be promoted and the rights of no other persons will be violated” by a sale of the property, in order to obtain a decree of sale of the property
The court will also determine what is in the best interest of the person under the disability, and what the share of such person should be in the land proceeds etc,.
“JNOV” Judgment Non Obstante Veredicto
Under Virginia code, the trial judge can enter a JNOV, when the jury’s verdictis contrary to the evidence, or it is without evidence to support it
However, if reasonable person’s may differ in their conclusions of fact to be drawn from the evidence or if the conclusion is dependent on the weight to be given to the testimony, the trial judge should not exercise this power
Statute of Repose
crossover with torts
Provides that no action to recover for any injury arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution for damages sustained as a result of such injury, shall be brought against any person performing or furnishing the design or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction
Long Arm Jurisdiction
Jurisdiction over a Non-Resident
Jurisdiction over a Non-Resident: Torts/Personal Injury Suit
Waiver of Personal Jurisdiction
How should a court rule on Motions to Dismiss for Improper Venue in Virginia?
A court should deny this motion because Venue is not jurisdictional in Virginia and no case should be dismissed based on that basis.
However, a party may still object to venue as being improper venue. *see Improper Venue Objection flashcard for rule
Improper Venue Objection
A defendant must file an objection to venue (not a motion to dismiss) within 21 days of service of process upon the defendant
In its pleading, a defendant must set forth where it believes venue to be proper. The matter shall be heard promptly by the court. The court should sustain a properly raised objection and transfer the case to a court of proper venue
Improper Venue Objection Waiver
A defendant may waive an ojection to venue
Under VA, requires that a party “promptly” have the matter heard by the court
Demurrer
A demurrer challanges the legal sufficiency of a complaint (i.e., the Plaintiff’s pleading) (or counterclaims, crossclaims or third party claims)
Demurrer: Timing
Wrongful Death Suit: Improper Party
Wrongful death action brought by an improper party
Every action for wrongful death must be filed in the name of the personal representative, NOT in the deceased name
If the complaint is filed by the wrong party, the suit cannot legally stand
*Filing suit in the name of the deceased is a legal nullity, and therefore any attempt by the plaintiff to amend or substitute the proper party should be denied
Application: The action should be styled Brenda Coleman, personal representative of the estate of Cody Coleman v. …
NOT Cody Coleman, deceased v. …
Crossover with a Demurrer
Wrongful Death Suit: Statute of Limitations
Statute of Limitation defense is a common plea in bar
In Virginia, a wrongful death action must be filed within two years of the date of death (not two years from the date of an accident, i.e., the death occurred from an accident with a corporation being at fault e.g., driver of a bus).
Application:
Example: In relation to improper party named in the wrongful death suit, because the designated plaintiff was a legal nullity (wrong party named), this amounted to there being no filing and consequently the statute of limitations ran out. The wrogful death action was not properly filed within the two years limitation. Thus, wrongful death was time barred
Crossover with wrongful death action by an improper party and Plea Bar
Plea in Bar
A Plea in Bar is a specific type of pleading that addresses an affirmative defense
It asserts a single factual issue that, if resolved in favor of the defendant, constitutes a complete defense to one or more of the Plaintiff’s claims
Plea in Bar: Timing
Circuit Courts retain jurisdiction to consider post-trial motions for only 21-days after entry of a final order
A court may modify, suspend, or vacate its final order only within that 21-day period
Appeals of civil matters from the Circuit Courts go first to the Virginia Court of Appeals, not the Virginia Supreme Court
When a party files in the wrong appellate court, the matter cannot be dismissed, but must be transferred to the correct appellate court for consideration
If a juror is related to either party of the case, has any interest in the outcome of the case, or has any apparent bias or prejudice to any party, the Court must strike the juror for cause.
Where a juror should be stricken for cause, the juror’s later removal through the use of a peremptory strike does not cure the error or make it harmless.
To be considered on appeal, errors must be raised in the trial court by way of objection. The appellate courts will not consider any issue raised for the first time on appeal, unless it elects to apply the “ends of justice” exception. This exception is very rarely applied and would not be applied in low stakes civil litigation.
*Example and Application: Here, Reba is Trey’s sister, so she is related to a party in the case and should be stricken for cause. Page was a business partner to Trey, had discussed the case with Trey, and was “very familiar with the facts in dispute.” Furthermore, Page believed that if the verdict was in Trey’s favor that more of Trey’s money could be freed up to invest in their partnership. These facts indicate that Page has a bias in favor of Trey, and so Page should also be stricken for cause.
Regarding the questions Trey’s lawyer asked of the panel, Mike’s lawyer failed to make a timely objection and state the grounds for the objection at the time the questions were asked. The trial court was not given an opportunity to rule on the issue or to consider curing any error with a limiting instruction to the jury. While the appellate court can sometimes apply the ends of justice exception when justice requires it, the court will not do so here because the stakes are merely financial and no one’s life or liberty is at stake.
Preemptory Strikes
“For Cause” Strikes
Long arm statute categories:
- Causes tortious injury instate by act or omission instate (Make sure person or corporation etc. is the cause)
- Causes tortious injury instate by act or omission out of state (must regularly solicit or do business in VA or engage in a persistent course of conduct from which it derives substantial revenue from goods used in VA)
- Contracts to supply services or things in Virginia
- Has an interest in, uses or possesses realty in Virginia
- Transacts any business in Virginia
- Causing injury in Virginia by breach of warranty where sale was out of state (where seller could reasonably foresee effect in Virginia and the seller regularly does or solicits business in Virginia or engages in a persistent course of conduct from which it derives substantial revenue from goods used in VA)
- Domestic relations
Subsequent Remedial Measures Discovery Rule
Although evidence of subsequent remedial measures is probaly not admissible to prove earlier negligence (unless defendant contends remediation is not feasible), discovery rule permits discovery of any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether the subject matter relates to a claim or a defense
The matter sought in discovery is not privileged. As long as the requested discovery is reasonably calculated to lead to the discovery of admissible evidence, an objection on the ground that the information sought is inadmissible should be overruled
Discovery Procedures
Virginia Uniform Arbitration Act
Arbitration
Arbitration Enforcement
Motion to compel arbitration
Under Virgnia Code, a provision in a written contract to submit disputes to arbitration is enforceable
Either party, on the other parties refusal to arbitrate, may make an application of the court and the court shall order the parties to proceed with arbitration
Upon which grounds may a court vacate an arbitrator’s award?
Each of these grounds involves unfairness about the arbitration procedure
- Corruption, Fraud, or Undue Means
- Partiality by an arbitrator appointed as a neutral, corruption of arbitrator, or misconduct prejudicing the rights of any party
- Arbitrators exceeded their powers
- Refusal to postpone upon sufficient grouns being shown or failure to hear material evidence or other conduct of the hearing contrary to VA code
- There was no arbitration agreement, and the issue was adversely determined under VA code and the party did not participate in the hearing withour raising the objection
Analysis: Under the facts in question, are there grounds to vacate the award?
Effect: Absent wrongdoing on the part of the arbitrator or irregularities in the hearing process (the grounds listed above), the court will defer to the award
What procedure must be employed to make the arbitration award enforceable against a person if they refuse to comply with the award?
The prevailing party after the award is made, makes application to the court to confirm the award and to enter a judgment in conformity with the award
Arbitration Clause
Revocation of an Arbitration Agreement
Neither party to an agreement to arbitrate has the right to revoke the agreement unless upon grounds that would serve to revoke or annul any contract such as mutual mistake, duress, undue influence, etc.
Statute of Limitations: Breach of an Oral Contract
How does D raise a statute of limitations defense?
Special Plea
A demurrer can either be…
Sustained or Overruled
What is a special Plea/Plea in Bar?
This is Virginia’s version of the affirmative defense
Temporary Injunction
In deciding whether to grant or deny a Temporary Injunction, the court should consider/weigh what factors?
Can a judge modify, vacate or suspend a final judgment order after 21 days?
No, after that period, the judge no longer has the authority to modify, vacate, or suspend the final judgment order
In Virginia, all final judgments, orders, and decrees remain under the control of the trial court for 21 days after the date of the entry, unless during that period the trial judge expressly directs the judgment to be modified, vacated, or suspended.
Thereafter, the court loses jurisdiction
Date of Entry
The date of the judgment, order, or decree that is signed by a judge
Final Judgment
Is one which disposes of the whole subject, gives all of the relief sought, and leaves nothing else to be done in the cause
