Pleadings in Circuit Court

Question 1

True or False: VA has abolished the distinction between cases at law and equity.

Answer 1

TRUE.

Question 2

Now all cases are called ______________ , regardless of whether they involve legal or equitable causes of action.

Answer 2

Civil actions.

Question 3

How does P initiate her lawsuit in Circuit Court?

Answer 3

By filing a complaint.

Question 4

What does P file instead of a complaint if she’s suing for mandamus, prohibition, or certiorari?

Answer 4

A petition.

Question 5

What must P include in her pleading?

Answer 5

1) The name of the court,
2) names and addresses of the parties,
3) signature of the lawyer,
4) statement of facts in numbered paragraphs
5) statement of relief desired (prayer)

The pleading must clearly inform D of the true nature of P’s claim.

Question 6

Must P allege jurisdiction?

Answer 6

No.

Question 7

Must P allege venue?

Answer 7

No.

Question 8

What is a “prayer?”

Answer 8

Statement of relief desired; this must be included in P’s complaint.

Question 9

A statement of relief for damages is called what?

Answer 9

Ad damnum clause.

Question 10

What must be identified separately in the prayer for relief?

Answer 10

Punitive damages.

Question 11

May P join (1) breach of contract, (2) breach of warranty, and (3) negligence claims in a single case?

Answer 11

Yes, P may join claims arising from the same transaction or occurrence.

Question 12

What is it called if P joins unrelated claims?

Answer 12

Misjoinder of claims; this is NOT allowed.

Question 13

After being served with P’s complaint, how soon must D respond?

Answer 13

21 days.

Question 14

What are the possible ways in which D can respond to P’s complaint?

Answer 14

1) Motion for bill of particulars
2) Motion objecting to venue (must be filed w/in 21 days of SOP unless court extends deadline to file responsive pleading)
3) Make a special appearance (D can do this if P fails to serve process w/in 1 year of filing the complaint).
4) Motion to dismiss for lack of PJ (this is also a special appearance)
5) Motion to Quash Process
6) Demurrer
7) Special Plea/ “Plea in Bar of Recovery”
8) Answer

Question 15

What happens if D raises PJ at the same time (or after) engaging the merits?

Answer 15

It’s waived.

Question 16

What is a general appearance?

Answer 16

Any conduct that engages the merits of the case (including a demurrer, special plea, counterclaim, cross-claim, third-party claim, and conducting discovery).

Question 17

Can D raise PJ at the same time as a motion objecting to venue and for transfer?

Answer 17

Yes.

Question 18

To argue that service of process was improper, what motion does D make?

Answer 18

Motion to quash process.

Question 19

Is it OK for D to file a motion to quash process simultaneously with a pleading responding to the merits?

Answer 19

Yes, it’s okay to file before or with a response to the merits.

Question 20

What’s a demurrer?

Answer 20

A pleading D files stating that P has failed to state a cause of action/ facts upon which relief can be granted.

Question 21

What can D challenge with a demurrer?

Answer 21

Failure to state a cause of action, misjoinder of claims, and lack of subject matter jurisdiction.

Question 22

What must the demurrer say?

Answer 22

It must specifically state why P’s pleading is insufficient. It can’t just say “P’s pleading is insufficient as a matter of law” or “fails to state facts showing that P is entitled to relief.”

Question 23

May the demurrer allege new facts?

Answer 23

NO.

Question 24

If D thinks case should be arbitrated because of a clause in the contract, but P failed in her complaint to mention the arbitration clause or annex the contract, what should D do?

Answer 24

Make a motion craving oyer.

Question 25

Motions are either granted or denied. Demurrers are either ___________ or ______________.

Answer 25

Sustained; overruled.

Question 26

If a demurrer is sustained, what does the court usually do?

Answer 26

Sustain without prejudice and set a time for an amendment.

Question 27

D can file a demurrer ____________ her answer or ______________.

Answer 27

Before; at the same time.

Question 28

What happens if D files her answer before she demurs?

Answer 28

She can't demur without court permission.

Question 29

What is a special plea or "plea in bar of recovery?"

Answer 29

Used to raise affirmative defenses, such as Statute of Limitations or res judicata.

Question 30

How may a special plea be raised?

Answer 30

Either separately as a motion to dismiss, or stated like affirmative defenses in the answer.

Question 31

What does D put in his answer?

Answer 31

1) Responses to allegations of the complaint (admit, deny, or state lack of knowledge) in numbered paragraphs 2) Affirmative defenses (special pleas)

Question 32

What's a general denial?

Answer 32

A single sentence denying all the allegations of the complaint. Generally not allowed by court rule.

Question 33

After the court has overruled all demurrers, pleas, and motions, D will be ordered to file her answer within ______ days or as the court directs.

Answer 33

21.

Question 34

With legal causes of action on contracts, can D plead equitable defenses such as failure of consideration, fraud in the inducement, breach of warranty, or unconscionability?

Answer 34

Yes.

Question 35

What is the effect of D pleading equitable defenses?

Answer 35

They diminish P's claim (common law recoupment).

Question 36

True or False: D can raise equitable defenses in a damages action on a contract and can recover damages for them, even in excess of P's claim.

Answer 36

TRUE.

Question 37

When D is asserting equitable defenses to legal actions, what can the court not order?

Answer 37

Reform or rescind a contract or compel the conveyance of land.

Question 38

Some defenses must be raised in a sworn pleading or affadavit (under oath). The pleadings that must be sworn include:

Answer 38

Lack of genuineness of handwriting. Lack of corporate or partnership or agency status (including employment relationship) Lack of ownership or operation of property or instrumentality.

Question 39

VA has special statutes to help vendors collect on contracts. In an action on a contract seeking payment of money, P can file with his complaint (or civil warrant or motion for judgment in GDC) an affadavit stating:

Answer 39

1) the amount of his claim 2) that the amount is justly due 3) the date from which he seeks interest.

Question 40

After being served with the process and affadavit together, what happens if D fails to plead under oath that P is not entitled to the money? What happens if D does plead that P isn't entitled to the money?

Answer 40

If D doesn't plead: judgment is entered for P. If D does plead: P is entitled to a continuance if she moves for it.

Question 41

After D responds, what must P do?

Answer 41

Nothing; except if D pleads new matter in his defensive response and expressly requests that P respond to the new matter.

Question 42

If D pleads a new matter in his response and expressly requests that P respond, how many days does P have to do so?

Answer 42

21 days. P responds in a reply.

Question 43

What can P do if D's answer is somehow legally insufficient?

Answer 43

File a motion to strike the pleadings.

Question 44

In federal court, there is a right to amend pleadings. In Virginia, a party must _______________.

Answer 44

Get leave to amend.

Question 45

If P files suit against D, then without court permission, P files an "amended complaint" which D answers, what is the effect of the "amended complaint" and D's answer to it?

Answer 45

They have no legal effect; they are nullities.

Question 46

True or False: Amendments are allowed liberally to further the ends of justice.

Answer 46

TRUE.

Question 47

What will the court consider in determining whether to allow an amendment?

Answer 47

Whether it would unduly delay proceedings or prejudice a party, or whether the amendment would be futile. The trial court decision will be upheld unless it's an abuse of discretion.

Question 48

Under what circumstances is "relation back" appropriate?

Answer 48

If the amended complaint concerns the same transaction or occurrence as the original, the party seeking amendment has been reasonably diligent, and the other party isn't substantially prejudiced.

Question 49

For "relation back" to apply when P is adding a new D, the new D must:

Answer 49

Have had notice within the limitations period of the action and knew or should have known that but for a mistake concerning identity, he would have been named originally.