Special Causes of Action in Virginia Flashcards
what are some special causes of action in VA?
- Wrongful Death
- Declaratory judgment
- Partition of Realty
- Actions to Establish Boundaries
- Ejectment
- Unlawful Detainer
- Detinue
- Medical Malpractice
- Enforcement of Arbitration Agreements Awards
what is a wrongful death action?
A wrongful death is an action brought by decedent’s PERSONAL REPRESENTATIVE
who are the beneficiaries in a wrongful death actin?
(1) Surviving spouse, children, grandchildren of decedent
(2) If there are no children or grandchildren, beneficiaries are surviving spouse AND parents of the decedent
(3) If there is no surviving spouse, no children, and no grandchildren, the beneficiaries are the parents and siblings of the decedent.
*if there are no beneficiaries in any of these groups, the damages pass to the decedent’s INTESTATE TAKERS
*award could also include another relative or decent who was (1) part of the decedents household; and (2) dependent upon decedent for support.
in wrongful death cases - who decides who gets how much?
in all cases, the JURY decides who gets how much
what can damages include in wrongful death cases?
damages can include:
(1) sorrow, anguish, and lost companionship
(2) services and income provided by decedent;
(3) medical and funeral expenses; and
(4) punitive damages for wanton or willful misconduct
what damages must be stated separately in the verdict?
(3) medical and funeral expenses; and
(4) punitive damages for wanton or willful misconduct
What if victim is injured and brings an action for personal injuries before he dies, then he dies from the same injuries?
A personal representative is substituted as plainti and sues for wrongful death.
in a case where victim brings case based on personal injuries and dies from same injuries for which she brought suit - can beneficiaries recover for the pain and suffering of decedent?
no! By statute, the case beaches a wrongful death case and replaces the decedent’s case
?in a case where victim brings case based on personal injuries and dies from same injuries for which she brought suit - can beneficiaries recover for punitive damages?
Yes! for wanton or willful misconduct
what happens if the defendant dies before before judgment?
no punitive damages from the defendants estate
declaratory judgments - where must they be sought?
declaratory judgment may be sought in the circuit court only
litigant who wants declaration of rights in a situation with actual controversy –> what can they do later?
A litigant wants declaration of rights in a situation where there’s actual controversy (so it’s not just an advisory opinion).
In that or a later proceeding, the litigant can seek consequential relief, like damages or an injunction. (winning party can then seek damages or injunction)
where can a partition of realty be filed?
an action for partition of realty can be filed only in the CIRCUIT COURT because it concerns title or boundary to realty. Venue is Category A (local action - so lay venue where the land or any part thereof lies)
what are the two ways in which partition can come up?
(1) a co-owner wants to be free of the other owner; or
(2) a creditor of 1 of the co-owners, who has a lien on the co-owners interests in the land wants to have that portion of the land to satisfy his debt
what are the three different methods of partition?
a) partition/division in KIND
b) partition by ALLOTMENT
c) partition by SALE
what is a) partition/division in KIND?
if the court orders partition in kind, the court DIVIDES up the property among the various interested persons so each gets some land.
**PREFERRED METHOD
what is b) partition by ALLOTMENT?
if the court orders partition by allotment, the courts lets ONE OR MORE of the co-owners have the land - AND orders them to pay off the others
when can the court order partition by allotment?
before allotment, the court must determine that partition in kind cannot be practicably made
what is c) partition by sale?
IF division in kind and partition by allotment are NOT feasible - the court orders SALE of the land, with the co-woers to split the proceeds
**not favored
when can a court order a partition by sale?
the court must find that :
(1) division in kind and partition by allotment are NOT feasible/practicable AND
(2) that partition by sale is in the interests of the parties
what is an ‘action to establish boundaries’
it is basically a declaratory judgment (not actually called that) to establish boundaries between contiguous adjoining land
**it is considered non-tortious, so rents or damages are not available as remedies
*the order just describes the boundary
where can an action to establish boundaries be brought?
an action to establish boundaries may only be brought in the CIRCUIT COURT because it concerns TITLE or BOUNDARY to realty
what is the venue for an action to establish boundaries?
the venue is CATEGORY A (local action - so lay venue where the land or any part thereof lies)
What is an ejectment action?
it is when the P is out of possession of realty, and wants to eject the person who is in possession of the land. The object is to determine title and obtain possession.
where can an ejectment action be brought?
an ejectment action can be brought only in the CIRCUIT COURT because it concerns TITLE or BOUNDARY to realty
what else can a plaintiff seek in an ejectment action?
The plaintiff may also seek rents and profits in the same action, and
the defendant can get an offset for improvements he made to the property.
what is an unlawful detainer action?
it is less formal than ejectment because it does not determine titles or boundaries to land.
Generally - about leaseholds - a landlord sues to oust a tenant and recover possession of really that the landlord clearly owns
what else (besides recovering possession) may the plaintiff recover in an unlawful detainer action?
the plaintiff can also recover back rent and for damage to the property
what is the proper venue in an unlawful detainer action?
the proper venue is CATEGORY A
where can an unlawful detainer action be brought?
because it does NOT determine title to real property –> detainer action may be brought in GDC
is there a limit on the amount in controversy for unlawful detainer actions in GDC?
no! the action is ok in GDC in any amount
what is DETINUE?
detinue is to recover personal property OR its value AND damages for detention
what are the requirements in order to bring a detinue action?
the plaintiff must have:
(1) an interest in the property
(2) a right to immediate possession of the property
when are detinue actions most usually brought?
often for sellers to recover property under a sales contract when the buyer failed to pay but keeps the item
where can you bring a detinue action?
one can bring a detinue action in GDC (if the controversy does not exceed $25,000) or in Circuit court
when is an action for detinue exclusive to GDC
it is exclusive GDC if the controversy does not exceed $4,500 (i.e. money or personal property is worth $4,500 or less)
pretrial to a detinue action - what can plaintiff get?
plaintiff can get IMMEDIATE POSSESSION EX PARTE (without notice to other side) by VERIFIED PETITION (under oath)
what must the verified petition include so P can get immediate possession/ pretrial seizure of the property?
a) The petition must describe the property and show the plaintiff’s right to it
b) The petition must show the risk that the property will be damaged or hidden or removed
c) The plaintiff must post a bond of twice the value of the property
d) The sheriff cannot enter defendant’s house forcibly to seize the property
how can the defendant get the property back in the meantime? (meaning that they keep it pending litigation)
by posting bond of twice the value of the property and giving notice to the plaintiff
in a tort action - how may a party request review wby medical malpractice review panel?
within 30 days AFTER a responsive pleading is filed, either side may request review by a medical malpractice review panel of judges, attorneys, and healthcare providers.
who establishes the panel in a medical malpractice review request?
The panel is established by the Virginia Supreme Court.
what is the effect of a request for medical malpractice review panel?
The request stays the tort action.
what happens after the panel decides the case?
the parties can (a) accept the panel’s decision or (b) resume the tort action.
If the tort case is resumed, the panel’s opinion is admissible in evidence, but is not conclusive.
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, can ask panel members about their deliberative process.
what does this request/statute apply to?
The statute applies to cases against healthcare providers, which includes many people in addition to M.D.s. It includes dentists, podiatrists, chiropractors, and pharmacists
Petition to arbitrate - who has jurisdiction and what can they do?
the circuit court has jurisdiction to determine, upon timely petition, whether there is an arbitration agreement; AND to order the parties to arbitrate the dispute
what happens if the agreement is silent on the issue of arbitration?
If the contract is silent on the issue of arbitration, the court will determine whether the dispute is subject to arbitration.
If it is, the court orders the parties to arbitrate pursuant to their agreement.
what happens if the agreement is silent on the issue of arbitration?
If the contract is silent on the issue of arbitration, the court will determine whether the dispute is subject to arbitration.
If it is, the court orders the parties to arbitrate pursuant to their agreement.
what can parties ask a court regarding arbitration agreements?
A party to arbitration may petition the circuit court to confirm an arbitration award into a judgment
OR
a party may ask the circuit court to vacate or modify the award (but only on very limited grounds).
when can an arbitration award be vacated?
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.
what type of venue are ‘actions for petition of realty”?
Venue is in Category A - (local action - so lay venue where the land or any part thereof lies)
does a judgment in favor of an unlawful detainer action bar any later actins?
nope! it does NOT bar later action for ejectment or trespass or later-accruing rents
