Equitable Procedure Flashcards
Equitable mastery!
What are the three important procedural distinctions between legal and equitable claims?
1) Default judgment in divorce
2) Jury trial rights
3) Review of equity decrees
What is the rule for default judgments in divorce proceedings?`
No divorce/annulment case can be resolved by default - P must make evidentiary submissions.
However, if D fails to make timely appearance, there is a waiver of notice rights in divorce actions, as in all other equitable and legal claims.
What is the rule for binding jury trial on claims for equitable relief?
What the two statutory exceptions?
There is no constitutional right to a jury in these cases.
Quiet title actions; D files a plea (e.g. affirmative defense) to an equitable claim (jury finding binding on court)
What is a plea? Examples?
A plea is a defensive pleading which sets forth a single dispositive state of facts which, if proven, would provide defendant a complete exoneration on plaintiff’s claim.
EX’s: illegality, time bar, accord & satisfaction, res judicator, etc.
What is an advisory jury and when is it appropriate?
The trial judge has discretion to seat a jury to hear hotly disputed factual issues, but the jury’s determinations are not binding on the judge
What are three ways a party can seek review of a final judgment/order in an equitable action?
1) A motion to suspend, modify or vacate the judgment or decree, which must be DECIDED (signed) within 21 DAYS after the entry of the decree.
2) Bill of review, filed within SIX MONTHS of the entry of an equitable final judgment or “decree,” and based upon either (a) newly discovered evidence (not available during prior proceeding - high burden) OR (b) error of law
3) Appeal
When must notices of appeal be filed, and where?
Within 30 days from date of appeal, at the trial court
Is appeal from Circuit Court a matter of right?
No. Generally, appeal is only available to the Supreme Court and only a “discretionary basis”
Exception: domestic relations appeals, which are heard by the Court of Appeals
What is the procedure for appealing to the VA Supreme Court?
1) Notice of appeal within 30 days
2) Petition for appeal (filed with Supreme Court) within 3 calendar months, including assignments of error.
