Equitable Procedure

Question 1

What equity law VA tests on

Answer 1

VA tests on general equity principles unless VA has applicable doctrine

Question 2

Scope of equity

Answer 2

Equity covers equitable claims and defenses

Question 3

Equity and other topics

Answer 3

Equity is primarily remedial, so often combined with other topics

Question 4

Governmental immunity and Equity

Answer 4

• Equitable claims may not be made against the Commonwealth
• equitable defenses cannot be raised against any governmental body in Virginia
  
  • (the Commonwealth, counties, cities or towns)

Question 5

Applicability of Virginia Equitable Procedure Terms

Answer 5

Virginia equitable procedural terms, like demurrers and special pleas, apply to both equity and law.

Question 6

Chancellor

Answer 6

Equitable term for judge

Question 7

3 procedural distinctions between legal and equitable claims

Answer 7

• Default judgement and divorce
• jury trial rights
• review of equity decrees

Question 8

Procedural distinction btw. legal and equitable claims

Default judgement and divorce

Answer 8

• Specific rules protecting fairness if a spouse doesn’t appear in a divorce case.
• There is no divorce by default in VA. Evidentiary submissions must still be made by the plaintiff before a judgment is granted
  
  • e.g. a trial in absentia.

Question 9

Procedural distinction btw. legal and equitable claims

Default judgement and divorce rule

Answer 9

• Typically, defendant entitled to notice of proceedings.
• But, if defendant fails to make a timely appearance, he’s not entitled to notice of any further proceedings in the case, including notice of depositions.
• Except, notice shall be given to counsel of record, if any.
• Thus, only a nonresponsive defendant with an attorney is required to have notice of proceedings.
• (applies to all law and equity cases).

Question 10

Procedural distinctions between legal and equitable claims

jury trial rights

Answer 10

• No constitutional right to jury on equity claims.
• In VA, you must review the pleadings to see if a jury right applies
  
  • (e.g. there are also legal claims and remedies).

Question 11

Procedural distinctions between legal and equitable claims

jury trial rights

what to do if a jury trial right applies

Answer 11

• If a jury right applies, you must make a timely demand for the jury to hear the legal claims.
• Typically made in Plaintiff’s complaint or Defendant’s answer.

Question 12

Procedural distinctions between legal and equitable claims

jury trial rights

procedure if the other side does not agree there is a jury trial right

Answer 12

• If other side does not agree there is a right to a jury, they may move to strike the jury demand.
• Judge will then determine if a right to jury exists

Question 13

Procedural distinctions between legal and equitable claims

jury trial rights

mixed legal/equitable cases

Answer 13

In all legal/equitable mixed cases:

• jury will decide all legal claims and remedies
• judge will then decide all remaining equitable claims and remedies

Question 14

Procedural distinctions between legal and equitable claims

jury trial rights

two equity situations where there is a VA statutory right to a jury

Answer 14

1. Quiet title actions
2. Where a defendant files a plea to an equitable claim

Question 15

Procedural distinctions between legal and equitable claims

jury trial rights

definition of plea

Answer 15

a separate document or heading in the defendant’s answer that acts as an affirmative defense.

Question 16

Procedural distinctions between legal and equitable claims

jury trial rights

effect of plea

Answer 16

• sets forth a single dispositive state of facts which, if proven, would provide the defendant a complete exoneration from plaintiff’s claim.
  
  • e.g. a plea of release.
• only a defendant can file a plea, so D can gatekeep jury right.
• But, if there’s a hearing on the plea, either side can request a jury to determine the factual matter comprising the plea of release

Question 17

Procedural distinctions between legal and equitable claims

jury trial rights

advisory jury

Answer 17

• Chancellor can seek advisory jury to hear hotly disputed factual issues.
• But, jury’s deliberations are not binding on the chancellor.
• It is error for the court to simply accept the advisory jury’s verdict at law, this is exactly the opposite.

Question 18

Procedural distinctions between legal and equitable claims

review of equity decrees

Answer 18

• After judgment, parties may seek review by the trial judge (in all kinds of proceedings) through a motion to suspend, modify or vacate the judgment or decree
• after an order is entered, the only thing that will keep the case within the power of the trial court is the review request. Cannot just file a motion for reconsideration
• Court must rule on it and issue a signed written order that suspends, modifies or vacates within the 21 day period

Question 19

Procedural distinctions between legal and equitable claims

Bill of review

Answer 19

• Def: a bill in equity that requests a judge to reopen a case in which a final order has been entered.
• may be filed within 6 months of entry of equitable judgement or decree

Question 20

Procedural distinctions between legal and equitable claims

Bill of review

2 grounds for a bill of review

Answer 20

• Newly discovered evidence
• an error of law

Question 21

Procedural distinctions between legal and equitable claims

bill of review grounds

Newly Discovered evidence

Answer 21

• very high standard.
• can’t just say you could have called another witness.
• must be something you could not find previously with reasonable diligence, and is the smoking gun.

Question 22

Procedural distinctions between legal and equitable claims

bill of review grounds

error of law

Answer 22

• must be found on the face of the record.
• includes misinterpreting a document, e.g. a contract.
• But error must be of law, not fact.

Question 23

Procedural distinctions between legal and equitable claims

appeal rights

Answer 23

• In domestic relations cases, appeal is a matter of right under statute.
  
  • Court of appeals will hear appeal.
• In all other civil cases, appeal is only available to the VA Supreme Court and only on a discretionary basis.

Question 24

Procedural distinctions between legal and equitable claims

appeal procedure

Answer 24

• For all civil cases, notice of appeal must be filed in the trial ct w/i 30 days of the date of the judgment.
• For all cases except for domestic relations, Must also file a petition for appeal to the VA S. Ct. w/i 3 calendar months.
• Petition includes “assignments of error” identifying the mistakes that, the appellant contends, warrant the Supreme Court in hearing the appeal.
• Writ is then granted and appeal has been permitted on the issues listed in the Supreme Court’s order, and will be heard by the Supreme Court. Briefing of the merits of the appeal then begins.