Parties and Causes of Actions

Question 1

Capacity to Sue: Third Party Beneficiary

Answer 1

Can sue in his own right even if not mentioned in the K.

Question 2

Joint Obligors and Tortfeasors

Answer 2

P can sue one of them, some of them, or all of them at her option. The fact that she is barred from suing one does not affect her right to sue the others.

The fact that she settles with on, does not affect her right to sue others. (Although judgements against others can be reduced by amount received in settlement.)

Question 3

Partnerships

Answer 3

Partners can be sued in their individual names. their doing business under names, or under the partnership name.

Question 4

Estate or Asministrator

Answer 4

If the suit relates to the acts of the decedent than the estate or administrator can sue or be sued in representative capacity.

If the suit relates to acts of the administrator individually, can sue in either capacity but must be sued in individual capacity.

Question 5

Minors

Answer 5

As Plaintiff - can sue in own name by whoever is “next friend”. Court will not disturb that choice unless there is a conflict of interest. A judgment in favor of a minor will not be disturbed for failure to sue through next friend.

As Defendant -
(a)sue the minor in own name.
(b) Ask clerk or court to appoint guardian ad litem who must be preset throughout trial.
- If no guardian ad litem is appointed but the minor has an attorney who has entered an appearance for them, the judgement will be valid.
Exception: must have a guardian ad litem in a suit to encumber a minor’s land.

Question 6

Person with Disability

Answer 6

1) Fiduciary - If he has a substantial estate, there is usually a forma incompetency hearing which results in the appointment of a fiduciary to act for the mentally incompetent person. This person can be a committee or a guardian or conservator. If there is a fiduciary then suits by or against the disabled person will be by or against fiduciary.

If no fiduciary was appointed:

If disabled person is Plaintiff - guardian sues, or if none, in their own name through his next friend.

If disabled person is Defendant - Same as with minor.

Question 7

Convicts

Answer 7

While a convict is in custody, they cannot be sued individually. Need to get a committee appointed.

Technically, a convict who is in custody should not be able to sue on their own and should have a committee. However, filing suit waived the failure to have a committee appointed.

Question 8

Death of Plaintiff or Defendant

Answer 8

If Plaintiff dies, then Plaintiff’s executor will Motion to substitute himself in suit.

If the party has some change in civil status (i.e., becomes mentally incapable after suit was filed) a representative can revive the suit in their name.

Question 9

When must a counterclaim be filed?

Answer 9

In CC must file within 21 days. In GDC anytime before trial.

Question 10

Counterclaims

Answer 10

A claim against an opposing party.

In VA a counterclaim is never compulsory. D has a choice whether to assert it, even if it is transactionally related.

If D does assert counterclaim, it does not have to be transactionally related to P’s claim. Can be for any claim under any theory that D has against P.

A counter claim must be for all Plaintiff’s jointly.

Does not need to be formally served. (Meaning you do not need a summons for it)

Once it is served, P has 21 days to respond.

Counterclaim can exceed Plaintiff’s claim. (But watch jurisdictional limits in GDC. If a counterclaim in a GDC court case exceeds $25,000.00, it cannot be asserted in GDC. It would be a separate case for CC.)

Question 11

Hypo: A and B as joint Plaintiff’s sues D to recover on a negotiable note. D files a counterclaim against A for personal injuries caused in a skateboard accident. A demurs. Results?

Answer 11

Demurer will be sustained.

Counterclaim must be against all Plaintiff’s jointly. Here the counter claim is against only one Plaintiff.

Question 12

Cross-Claim

Answer 12

Claim against a co-party

Question 13

Cross Claim Characteristics

Answer 13

Permissive, never compulsory.

Must be transactionally related to the underlying case.

Can be asserted against one of several co-parties.

Historically you were required to get a summons and formally serve a cross claim. This may no longer be true. All you need to do is mail it. But there is no clear case law so may be safer to do it the old way.

Cross claimant has 21 days to respond.

Question 14

When must a cross claim be filed?

Answer 14

CC - 21 days after you are served with the original complaint.

GDC- Any time before trial but be aware of the 25K limit.

Question 15

Impleader

Answer 15

If a Defendant wants to join a third-party from whom they will seek indemnity or contribution from on the underlying claim against D, they would file a third-party complaint against the third-party. This is called an impleader.

The Third-Party complaint must be formally served on the third party. You would sent the third-party complaint, along with summons to the third party.

The Plaintiff then can file any claims they have against third-party, and third party can file claims against Plaintiff, as long as they arise from the same transaction or occurrence as the underlying case.

Defendant cannot implead a joint tortfeasor against whom Plaintiff would not be able to recover.

Question 16

When must an impleader be filed?

Answer 16

CC - No later than 21 days after serving his first responsive pleading. After that they would need leave from court.

GDC - within 10 days after service or up until the trial date. Whichever is earlier.

Question 17

Hypo: P is an employee of Deez Nutz construction company, which is installing a gas line for the city. The line explodes and P is injured. Apparently from the joint negligence of Deez Nutz Const. Co and the city. P sues the city for damages. The city wants to implead Deez Nutz Construction Company, can they do that?

Answer 17

NO. Because Plaintiff would not have been able to sue them because of workers comp.

Question 18

Necessary Party

Answer 18

This is an absent party who should be made to join the case. In VA the court can order the joinder of parties as the ends of justice require.

A party is necessary if:
(a) the court cannot grant complete relief without the party.
(b) the absent party has an interest in the action that would be impaired or impeded OR
(c) the parties absence creates a substantial risk of multiple liability or inconsistent obligations.

Question 19

What is an indispensable party?

Answer 19

A necessary party who cannot be joined to the case (e.g., no PJ over them).

The Court may decide to dismiss the entire case rather than proceed without the absentee. If the Court decides to dismiss, we call the absentee, indispensable.

In VA there is a statute which says there is no dismissal for non-joinder without first giving P an opportunity to join the party. However there is no case law which says that a court cannot dismiss if it determines that an absentee who cannot be joined is indispensable.

Question 20

Interpleader

Answer 20

This is when a holder of real property or personal property (including money) knows that there are others who claim a right to it. Rather than going through several suits, they can interplead and force everyone to litigate in one single proceeding.

GDC - Court can order interpleader as to property worth 25K or less or in any amount (even more than 25K) for earnest money deposit in a land sale.
Note - Here the Court cannot issue an injunction against pursuing other related proceedings.

CC - if amount in controversy is more than 25K. Here the court can issue an injunction against pursuing other related proceedings.

Question 21

Intervention

Answer 21

This is when an absentee wants to join a pending case. ONLY IN CC

There is never a right to intervene in state court. Must make a motion to the court. It is at the discretion of the court.

No time limit to intervene. At discretion of court.

The claim or defense in an intervention MUST be related to the case.

Question 22

Intervention - Process

Answer 22

1) File a petition for intervention
2) If granted, the intervenor-Plaintiff would file a complaint and formally serve it with process.
Defending parties then respond as they would to any complaint.
3) If granted, Intervenor-Defendant files an answer in intervention

Question 23

Class Actions

Answer 23

None in VA State Court

Question 24

Wrongful Death

Answer 24

1) Action is brought by decedents personal representative

2) Beneficiaries are:
(a) Surviving Spouse, then kids, then grandkids
(b) If no one from (a) exists, then parents.
(c) if no parents, then siblings

If no beneficiaries in any of these groups, then the damages pass to decedent’s intestate takers.

In all cases, jury decides who gets how much.

Note: Award can include another relative of Decedents household who who depended on Decedent for support.

Question 25

Wrongful Death - Categories of Damages

Answer 25

Sorrow, anguish, loss of companionship
Services and income provided
Medical and funeral expenses
Punitive damages for wanton or willful misconduct

Last two must be stated separately in verdict.

Question 26

What if victim is injured and brings an action for personal injuries before he dies, then he dies from the same injuries?

Answer 26

Substitute personal rep as Plaintiff and sue for wrongful death.

Cannot recover pain and suffering of decedent as now it is a wrongful death.

Can still recover punitive damages for wanton and willful misconduct.

If D dies before judgment - No punitive from D’s estate.

Question 27

Declaratory Judgement

Answer 27

Litigant wants a declaration of rights in a situation where there is actual controversy.

CC only

Can seek damages or injunction.

Example: The state highway department paves over a portion of Sally’s land as part of a new road. They do nothing to compensate sally. She can sue for declaration of compensation due.

Question 28

Partition of Realty

Answer 28

CC Only (Concerns title or boundary of realty)

Two ways it can come up:
(a) co-owner wants to be free of the other owner
(b) a creditor of one of the co-owners who has a lien on the co-owners interest in the land, wants to have that portion of the land sold to satisfy debt.

Three methods:

Partition in kind - Court divided the property among the various interested people.

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

Partition by sale: If the other two are not feasible, the court will order the sale of the land, with co-owners to split proceeds. This is not favored.

Question 29

Hypo: Era and Adam own land as joint tenants. Paula has an unsatisfied judgement against Era. She sues both Era and Adam in the county where the property is located and asks the court to partition the land and sell Era’s interest to satisfy the debt. Adam files a demurer. How should the court rule?

Answer 29

Overrule it. Paula can seek a partition to satisfy the debt.

Question 30

Hypo: Era and Adam own land as joint tenants. Paula has an unsatisfied judgement against Era. She sues both Era and Adam in the county where the property is located and asks the court to partition the land and sell Era’s interest to satisfy the debt.

Court rules that while land could be divided in kind and apportioned between Era and Adam it would instead order the sale of the whole land with Paula’s Judgment to be satisfied from Era’s half. Can court do this?

Answer 30

No. It cannot order the sale if partition in kind or allotment can practicably be made.

Even if the land is more valuable if kept as a single tract, the court cannot order sale if division is possible.

Question 31

Action to Establish Boundaries

Answer 31

CC Only (Concerns title or boundary to realty)

An action to establish boundaries between contiguous adjoining lands.

Non-tortious so no rents or damages.

Order just describes the boundary.

Question 32

Ejectment

Answer 32

CC Only

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

P may also seek rents and profits in the same action. Defendant can get an offset for improvements he made to the property.

Question 33

Unlawful Detainer

Answer 33

Less formal than ejectment. Does not determine title or boundaries to land.

Generally, this is about leaseholds. A landlord sues to oust a tenant and recover possession of realty that the landlord clearly owns.

P can also recover back rent and for damage of the property.

Because it does not determine title to real property, this cause of action can be brought in GDC.

These cases are ok in GDC for any amount.

Judgement does not bar later action for ejectment or trespass or later-accruing rents.

Question 34

Detinue

Answer 34

Action to recover personal property or it’s value and damages for detention. Plaintiff must have an interest and have a right to immediate possession of the property.

Often for sellers to recover property under conditional sales contracts when the buyer fails to pay but keeps the item.

Pre-trial seizure: Plaintiff can get immediate possession of the property ex-parte (without notice to other side) by verified petition that demonstrates:

(a) description of the property and showing P’s right to it

(b) the risk that the property will be damages or hidden or removed and by posting bond of twice the value of the property.
- Note - Sherriff CANNOT enter the Defendant’s house to forcibly seize the property.

Defendant can get the property back by posting bond of twice the value of the property and giving notice to P.

Available in GDC or CC if the amount of controversy is between $4,500 - 25K.

Exclusive GDC jurisdiction if amount in controversy is under $4,500.00

Question 35

Medical Malpractice

Answer 35

Within 30 days after a responsive pleading is filed, either party can request review by the medical malpractice review panel of judges, attorneys and healthcare providers.
- The panel is established by the VA Supreme Court. The request stays the tort actions.

The panel decides the case. The parties can accept the panel decision or resume the tort action.

If they chose to resume the tort action, the panels decision IS ADMISSABLE into evidence but is not conclusive.
- Panel members can testify
- The opinion or record before the panel must contain evidence of the standard of care or else it will not be admitted into evidence at trial.
- In discovery, you can ask panel members about their deliberative process.

Question 36

Enforcement of Arbitration Agreements and Awards

Answer 36

CC has jurisdiction to determine, upon a timely petition, whether there is an arbitration agreement and order the parties to arbitrate the dispute.

If the K is silent on arbitration, the Court will determine whether the dispute is subject to arbitration.

An party to an arbitration can petition the CC to confirm an arbitration award into a judgement or to vacate or modify the award but only on very limited grounds.

An arbitration award can be vacated for fraud, corruption, undue influence on the arbitrator, or if the arbitrator acted beyond power or improperly to the prejudice of a party or improper refusal to postpone arbitration hearing or to hear material evidence.

Question 37

Statute of Limitations

Answer 37

Generally the statute begins to run from the date of injury or breach.

Exceptions:

1) Fraud, mistake, undue influence: cause of action accrues when P discovered the harm (or when a reasonable person would have discovered the harm)

2) Malicious Prosecution: Accrues when the underlying case ends.

3) Contribution: Accrues when one pays more than their fair share.

4) Malpractice: Through continuous treatment/service.
- Dentist commits’ malpractice in 2015. He undertakes to fix it in 2016 and 2017. P still having pain in 2018. P sues in 2018 which is beyond statute if statute began to run in 2015. Is P barred? No because the cause of action accrues at the end of related course of treatment.

Question 38

SOL Periods - Personal Injury

Answer 38

2 Years

Question 39

SOL - Non Physical Torts (e.g., malicious prosecution)

Answer 39

2 Years

Question 40

SOL - Defamation

Answer 40

1 Year

Question 41

SOL - Property Damage

Answer 41

5 years.

PD for sales covered under UCC - 4 years

Question 42

SOL Fraud

Answer 42

2 years

Question 43

SOL Wrongful Death

Answer 43

2 years from death

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

Question 44

SOL - Written Contracts

Answer 44

5 years

Question 45

SOL Unwritten Contracts

Answer 45

3 years

Question 46

SOL - Unlawful Detainer

Answer 46

3 years

Question 47

How does D raise statute of limitation?

Answer 47

Special Plea

Cannot raise through a demurer because a demurer cannot inject new facts.

Question 48

Does D have to plead the specific statute?

Answer 48

No, just has to allege that the cause of action is barred.

Question 49

Who has the burden of proof concerning statute?

Answer 49

Defendant

Question 50

Tolling the Statute

Answer 50

Minors cause of actions are tolled until the minor is 18 or is judicially emancipated.
- Note - This does not apply to medical malpractice cases. Statute runs after 2 years, despite the age of the child.

Question 51

P files suit one week before the statute runs, and has properly served D with process. Two weeks later, P takes a nonsuit (voluntarily dismisses). What is statute of limitations?

Answer 51

Right to refile within 6 months or or limitations period, whichever is longer.

Question 52

Tolling SOL - Unknown Owner or Operator of a Motor Vehicle

Answer 52

A case may be brought against an unknown owner or operator of a motor vehicle as “Doe” (John or Mary) and the statute of limitations will be tolled for 3 years to give the Plaintiff a chance to discover the Defendant’s identity.

Question 53

Tolling SOL - Counterclaim & Cross Claim

Answer 53

P’s filing of his suit, tolls the SOL for counterclaims and cross claims that arise from the same transaction or occurrence.