Civil Procedure - Virginia

Question 1

Counterclaims

Issue: Whether a counterclaim must arise out of the same transaction identified in complaint

Answer 1

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

Question 3

What documents must be filed by Appellant to perfect an appeal of right?

Answer 3

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

Question 4

When and where must documents be filed and to whom must copies be delivered or mailed to, to perfect an appeal?

Answer 4

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

Question 5

Transfer Case

Contractual provisions to Venue

Answer 5

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

Question 6

Transfer Case

No preferred venue

Answer 6

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

Question 7

Amendments

Amended complaint

Answer 7

No amendment may be made to any pleading after it is filed except with leave of court, which should be liberally granted

Question 8

Peremptory Strikes Objection

Answer 8

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

Question 9

Demurrer Appeal

Answer 9

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

Question 10

Nonsuit

Answer 10

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

Question 11

Challenging Grant of Nonsuit

Remedies

Answer 11

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

Question 12

Declaratory Judgment

Question 13

Unlawful Detainer

Question 14

Partition

Question 15

Bill to Quiet Title

Answer 15

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

Question 16

Ejectment

Answer 16

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

Question 17

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?

Answer 17

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”

Question 18

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?

Answer 18

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,.

Question 19

“JNOV” Judgment Non Obstante Veredicto

Answer 19

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

Question 20

Statute of Repose

crossover with torts

Answer 20

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

Question 21

Long Arm Jurisdiction

Question 22

Jurisdiction over a Non-Resident

Question 23

Jurisdiction over a Non-Resident: Torts/Personal Injury Suit

Question 24

Waiver of Personal Jurisdiction

Question 25

How should a court rule on Motions to Dismiss for Improper Venue in Virginia?

Answer 25

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

Question 26

Improper Venue Objection

Answer 26

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

Question 27

Improper Venue Objection Waiver

Answer 27

A defendant may waive an ojection to venue

Under VA, requires that a party “promptly” have the matter heard by the court

Question 28

Demurrer

Answer 28

A demurrer challanges the legal sufficiency of a complaint (i.e., the Plaintiff’s pleading) (or counterclaims, crossclaims or third party claims)

Question 29

Demurrer: Timing

Question 30

Wrongful Death Suit: Improper Party

Wrongful death action brought by an improper party

Answer 30

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

Question 31

Wrongful Death Suit: Statute of Limitations

Answer 31

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

Question 32

Plea in Bar

Answer 32

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

Question 33

Plea in Bar: Timing