VA Civ Pro

Question 1

Long Arm Statute

Answer 1

Provides for specific personal jurisdiction over a nonresident if the nonresident causes a tortious injury in state by an act or omission in state, causes tortious injury in state by an act or omission out of state if he regularly does business in or engages other persistent course of conduct from which he derives substantial revenue in Virginia, contracts to provide services or things in Virginia, has interest in, uses, or possesses property in Virginia, transacts any business in Virginia, causes injury in VA to any person by breach of warranty, executes an agreement to pay spousal or child support to a VA domiciliary, has maintained in VA a matrimonial domicile at the time of separation of the parties on which grounds for divorce or separate maintenance is based at the time of the cause of action arose for divorce or at the time of commencement of suit, has conceived or fathered a child in VA, or has incurred a liability for taxes, fines, penalties, interest , or other charges in VA

Question 2

Single Transaction State

Answer 2

Virginia is a single transaction state, meaning personal jurisdiction is allowed even if there is only one business contact in Virginia

Question 3

Subject Matter Jurisdiction in Circuit Court

Answer 3

They can hear any civil action unless there is exclusive jurisdiction in another court. They cannot hear cases where the amount in controversy is $4,500 or less. Equity causes of action like injunctions must be heard in Circut Court.

Question 4

Subject Matter Jurisdiction in General District Court

Answer 4

GDC may hear actions at law, actions in detinue for recovery of personal property, attachment cases for personal property, interpleader cases for real or personal property if the amount in controversy is less than $25,000. GDC can hear claims for any amount of rent due or to oust a defendant from real property through unlawful entry detainer cases, or grant distress warrants to allow a creditor to seize property no matter what amount is in controversy. GDC has exclusive jurisdiction over cases with $4500 or less as the amount in controversy.

Question 5

Transfer between GDC and Circuit Court

Answer 5

if a plaintiff amends the complaint to increase or decrease the amount claimed and the amended amount affects jurisdiction, the court must transfer the case to the proper court without dismissal. If GDC and Circuit Court would have concurrent jurisdiction, the plaintiff decides which court will hear the case. The motion to amend and transfer must be made at least 10 days before trial unless good cause is shown

Question 6

Appeal from GDC to Circuit Court

Answer 6

cases heard in GDC can be appealed as a matter of right to the circuit court if the amount involved is more than $20. A case appealed to the Circuit Court is tried de novo. If D appeals, P can amend complaint to request more money. The appealing party must file a written notice of appeal with the clerk of the GDC within 10 days of judgment and post bond and pay writ tax at the GDC within 30 days of judgment (or 10 days if unlawful detainer case)

Question 7

Forum Selection Clauses

Answer 7

Virginia will enforce if fair and reasonable

Question 8

Category A Venue

Answer 8

D may object to venue if suit is brought at a location other than the specified venue.

Question 9

Venue for land cases

Answer 9

if the action involves the recovery, partition, or judicial sale of land, the establishment of boundaries, the subjection of land to a debt, unlawful entry or detainer, or removal of a cloud on title, then venue is where the land or a part of it is located. Also called local actions.

Question 10

Venue for wills cases

Answer 10

In actions to establish or impeach a will, venue is where the will was probated or if not probated, where it could have been offered for probate

Question 11

Venue for Writs

Answer 11

For mandamus, prohibition, or certiorari (review of zoning decisions), venue is at place where proceeding to which the writ relates is located

Question 12

Venue for injunctions

Answer 12

where the subject proceeding or judgment is pending or was rendered, or where the subject act is to be done, is being done, or is apprehended to be done.

Question 13

Venue for Virginia tort claims

Answer 13

tort claim against the state or state agency may be brought where the claimant resides or where the act or omission occurred, except that if the claimant is a nonresident and the tort occurred outside the state, venue is in Richmond

Question 14

Category B Venue

Answer 14

a defendant may object to venue if suit is brought at a location other than where the defendant resides or has his principal place of employment, where the D has a registered office, appointed an agent to receive process, or where such agent has been appointed by operation of law, where the D regularly conducts substantial business activity, where the action or any part arose (for contract can be place where it was entered into or place of breach), where the fiduciary qualified, where personalty is located if suit concerns recovery of personalty, where goods are received if based on delivery of goods, where personalty is located or evidence of it is located if to partition personalty (or where P lives), if none of the others are available, where D has property or debts owing to him, if all D’s are unknown or nonresidents or no other venue available, the where the P resides

Question 15

Objection to Venue

Answer 15

objections. are waived unless objecting party makes objection within 21 days after he receives service of process, or within any extension of time for filing a responsive pleading. Failure of one D to object does not prejudice other D’s to object. If a D whose presence created venue was dismissed, a remaining D may object to venue within 10 days of dismissal and must show the dismissed D was not properly joined or was added only to create venue. In GDC can object to venue on or before the day of trial.

Question 16

Transfer of Venue

Answer 16

court can transfer from one proper venue to another for good cause, including agreement of parties or to avoid substantial inconvenience to the parties or witnesses. The court also considers delay by the party seeking transfer Court may not transfer from Category A to non-Category A venue without consent of the parties.

Question 17

Forum Non Conveniens

Answer 17

If the cause of action accrued out of state, is brought by a nonresident, and there is a more convenient venue outside of VA, a court may dismiss without prejudice. The court must find good cause and that the other court has jurisdiction. This may be granted on certain conditions, like requiring the defendant not to raise certain objections.

Question 18

Service in GDC

Answer 18

Either a warrant if you use a civil warrant as the complaint or notice of a motion for judgment if you use a motion for judgment as the complaint. Civil warrant/motion for judgment is directed to the sheriff or deputy who serves on P. Return date cannot be more than 60 days or less than 5 days after service of process.

Question 19

Service in Circuit Court

Answer 19

Summons and copy of the complaint

Question 20

Who can serve process?

Answer 20

Process may be served by an adult civilian who is not interested in the case or by a sheriff or deputy. An officer may serve in her city or county and in contiguous localities

Question 21

Service on an Individual

Answer 21

First, the process server must attempt personal/actual service on the defendant.

If actual service is not possible after attempt, substituted service is allowed by delivering a copy at the party’s usual abode to a member of the family who is at least 16 and is not a guest. The process server must tell the family member the purpose of the document.

If actual and substituted service is not possible, the process server must post a copy of process on D’s front door and at least 10 days before taking a default, must mail process to D and certify to the clerk that the mailing took place. Circuit court requires the P to inform the D in the mailing that if D does not respond after 10 days from the mailing that P may seek default judgment.

Question 22

Process actually received

Answer 22

except in cases of divorce and annulment, if process is served improperly but the defendant actually receives it on time, the service is effective

Question 23

Is someone immune to service if they are present in Virginia only to serve as a witness in a civil case?

Answer 23

No, but there may be immunity if they are summoned for a grand jury or criminal case

Question 24

Service under the longarm statute

Answer 24

P can arrange for personal service on the D outside of the state or on the D’s agent in Virginia. But if P, after exercising due diligence, cannot locate the D, P must execute an affidavit setting forth that they could not locate D by due diligence and D’s last known address, and then gives process and the affidavit to the Secretary of the Commonwealth, who then certified mails the process to D at his last known address. The Secretary then sends a certificate of mailing to the court.

Question 25

Service on domestic corporations and qualified nonresident corporations

Answer 25

all resident corporations and corporations qualified to transact business in Virginia must designate a registered agent to receive process. P may serve the registered agent or any officer or director. if the registered agent cannot be found, P may serve the clerk of the State Corporation Commission.

Question 26

Service of process on a foreign corporation that is not qualifed

Answer 26

P may serve on any officer, director, or agent found in the state. if none is found, serve two copies of process and affidavit of corporation’s last known address on the clerk of the SCC

Question 27

Service under the Non-Resident Motorist Act

Answer 27

Serve the Commissioner of Motor Vehicles. Give affidavit of due diligence and D’s nonresidence. If affidavit is false, there is no jurisdiction.

Question 28

Non-Resident Motorist Act

Answer 28

Allows jurisdiction over the owner or operator of a vehicle involved in an accident in Virginia

Question 29

Service by Publication

Answer 29

Never available for in personam cases and is only allowed for cases concerning right of property or status (ex parte divorce). t is obtained on affidavit stating compelling reasons to make such service and is entered by the clerk or judge commanding the D to appear on or before the date specified in the order, which cannot be sooner than 50 days after entry. Publication must be once a week for four successive weeks in a newspaper designated by the court or clerk. A copy must be mailed to the D’s last known address and a copy must be posted at the front door of the courthouse within 10 days after entry.

Question 30

The Return

Answer 30

Proof of service. It is a report by the officer who served process relating what she did to effect service and the time and manner of service. It must state any reasons for failure to effect personal service. The return is prima facie evidence of the facts asserted. Must be filed within 72 hours of service of process. It must be signed by the person making service and indicate the state and jurisdiction where accepted

Question 31

Timeliness of Service

Answer 31

P must have process served within one year of filing the case. If P fails to do so and cannot show he exercised due diligence in serving D, his case may be discontinued at the discretion of the court.

Question 32

Waiver of service of process

Answer 32

P may, in writing, request a waiver of service from any D. If the D refuses to waive without good cause, the court may impose the costs of service on him. If D waives service, he has 60 days if in state or 90 days if out of state to file any required responsive pleadings

Question 33

Pleadings

Answer 33

must be filed in good faith, not for delay. must state in numbered paragraphs the facts to be relied on and will be sufficient if it clearly informs the opposite party of the true nature of claims or defenses. pleadings may name a law firm, but one lawyer’s name must be set forth and signed. Documents that are the basis to a claim or defense should be annexed as an exhibit, which makes them part of the pleading

Question 34

Motion craving oyer

Answer 34

Motion asking for a party to produce a document that is the basis to a claim or defense that should have been annexed to the pleading as an exhibit.

Question 35

Attorney certificate to pleadings

Answer 35

an attorney or pro se party must sign all pleadings, motions, and other papers, certifying that she has read it, that to the best of her knowledge, information, and belief formed after a reasonable inquiry that it is grounded in fact and law or a good faith claim that the law should be modified, and it is not for harassment or delay.

Question 36

sanctions for pleadings

Answer 36

sanctions may be awarded for an improper document and the party seeking sanctions may receive costs and attorney fees. Virginia does not have a safe harbor provision allowing a party to avoid sanctions by withdrawing a pleading. the party seeking sanctions must serve the motion on the opposing party before filing with the court.

Question 37

Amendments to pleadings

Answer 37

no amendments will be made to any pleading after it is filed except by leave of court. leave to amend will be granted liberally in furtherance of the ends of justice. courts will consider whether allowing will delay proceedings, prejudice a party, or whether amendment will be futile.

Question 38

alternative pleadings

Answer 38

can plead alternative facts as to alternative parties if they arise from the same transaction or occurrence.

Question 39

Extensions of time for pleadings

Answer 39

court in the sound exercise of its discretion may extend the time in which parties are required to file pleadings and motions, even if the time for filing has already passed. court will consider the good faith of the moving party, prejudice to the other party, extenuating circumstances, and merit of proposed document

Question 40

Procedure in GDC

Answer 40

D generally does not file a responsive pleading, he and P both show up on the return date and try the case.

Question 41

Motion for a Bill of Particulars

Answer 41

in GDC, requesting more information and details about P’s case before trail

Question 42

Motion for Grounds of Defense

Answer 42

Motion in GDC by P asking court to require D to file a responsive pleading. in court’s discretion to grant.

Question 43

If court orders P to file a bill of particulars or D to file grounds of defense and they fail to do so, what can happen?

Answer 43

Court can enter summary judgment against a party failing to file.

Question 44

Petition

Answer 44

when P is suing for mandamus, prohibition, or certiorari

Question 45

Must P allege jurisdiction in the complaint?

Answer 45

No

Question 46

Must P allege venue in the complaint?

Answer 46

No

Question 47

Prayer

Answer 47

statement of relief, must be included in complaint

Question 48

Ad Damnum Clause

Answer 48

Statement of relief for damages

Question 49

What must be identified separately in the complainit?

Answer 49

Punitive damages

Question 50

Barney sues Otis for damages from a car collision. Regarding negligence, Barney alleges that Otis’s negligence in driving his car proximately caused P’s injuries. Is this allegation of negligence okay?

Answer 50

yes, may allege negligence and proximate cause generally

Question 51

What must a complaint contain

Answer 51

the name of the court, names and addresses of the parties, signature of lawyer, statement of facts in numbered paragraphs, and enough information to inform D of true nature of claims. Must allege a legal cause of action

Question 52

Joining causes of action

Answer 52

actions in tort may be joined with contract claims as long as they arise out of the same transaction or occurrence. All claims relating to the same transaction or occurrence generally must be brought ni the same action or be barred by res judicata. HOWEVER, personal injury claims and property damage claims arising from the same transaction or occurrence may be split.

Question 53

Defendant’s Response

Answer 53

D must respond to the complaint within 21 days after service of process upon her. A responsive pleading is a motion objecting to venue, a demurrer, a motion to dismiss, a motion to quash process, a special plea, a motion for a bill of particulars, or a statement of grounds for defense.

Question 54

Motion Objecting to Venue

Answer 54

Must state why venue is improper and what places would be filed. Must be filed within 21 days after service of process.

Question 55

Process not served within 1 year of commencement

Answer 55

D makes motion to dismiss. If P did not use due diligence, the case is dismissed with prejudice. If P did use due diligence, motion is denied and D must respond within 21 days of denial

Question 56

General appearance

Answer 56

any conduct engaging the merits of the case, including an answer, demurrer, special pleas, counterclaim, crossclaim, third party claim, conducting discovery, seeking a ruling on the merits, participating in proceeds related to the merits

Question 57

Challenging personal jurisdiction

Answer 57

D must challenge PJ before making a general appearance. If D raises it at the same time as a general appearance or after, D has waived personal jurisdiction. Does not waive PJ if D requests or agrees to an extension of time to respond. D does not waive PJ if raising at the same time as a motion objecting to venue and for transfer.

Question 58

Motion to Quash Process

Answer 58

motion arguing that service of process was improper or there was a problem with issuance of process or with the return. this defense is waived if D makes a general appearance, but can make this motion simultaneously with a response to the merits.

Question 59

Demurrer

Answer 59

Tests the legal sufficiency of a pleading that seeks affirmative relief. reaches misjoinder of claims, lack of subject matter jurisdiction, failure to state a cause of action. Cannot allege new facts to defeat P’s claim in the demurrer. If a demurrer is sustained, then the court will usually sustain without prejudice and set time for a P to amend. D can file a demurrer before her answer or at the same time, but if D files answer before demurrer, D cannot demur without court permission.

Question 60

Motion to Strike the Pleading

Answer 60

used to test legal sufficiency of a defensive claim, Must be made within 7 days of filing

Question 61

Special Plea

Answer 61

basically affirmative defenses. May be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer. Present a single set of facts which, if true, obviate the need to proceed further with the action.

Question 62

Answer

Answer 62

Answer is filed in response to complaint. D responds to allegations of the complaint by admitting, denying, or stating lack of knowledge in numbered paragraphs and states any affirmative defenses called special pleas. If D does not deny an allegation, it is assumed to be admitted. A general denial is a sentence long and denies all allegations of the complaint. After the court has overruled all demurrers, pleas, and motions, D will be ordered to file her answer within 21 days

Question 63

Sworn pleading requirements

Answer 63

if D wants to raise ay of the following defenses, he must do so under oath in a sworn pleading or affidavit:

• lack of genuineness of handwriting
• lack of corporate or partnership or agency status
• lack of ownership or operation of property or instrumentality

Question 64

Contract and Account actions

Answer 64

P can file with his complaint/civil warrant/motion for judgment an affidavit stating the amount of his claim, that the amount is justly due, and the date from which he seeks interest. If D fails to plead under oath that P is not entitled to the money, judgment is entered for the P. If D does plead under oath, then P is entitled to continuance if she moves for it

Question 65

Reply by Plaintiff

Answer 65

anything stated by D in his plea/motion/answer is deemed denied by P, so P does not have to file an answer. However, if D pleads a new matter in his defensive response and expressly requests that P respond to the new matter, than P has 21 days to admit or deny the new matter in a reply

Question 66

Relation back for amendments

Answer 66

appropriate if the amended document concerns the same t/o as the original, the party seeking amendment has been reasonably diligent, and the other party is not substantially prejudiced.

Question 67

relation back when adding a new defendant

Answer 67

new party had to have notice within limitations period of the action and knew or should have known that but for a mistake concerning identity, she would have been named originally

Question 68

Discovery in GDC

Answer 68

no discovery in GDC as a general matter. can compel witness’s attendance at trial through subpoena and subpoena duces tecum (bring stuff with you) addressed to parties or nonparties. should file request for subpoena at least 15 days before trial. after, must show good cause.

Question 69

Are there required disclosures for discovery?

Answer 69

No.

Question 70

Timingg

Answer 70

21 days for pretty much everything. 21 days for responding to interrogatories, for example

Question 71

Maximum number of interrogatories that may be served without court permission

Answer 71

30 including subparts

Question 72

Limits on depositions

Answer 72

no limit in VA court, but cannot take more than 10 or depose people twice in federal court w/o court permission

Question 73

subpoena duces tecum

Answer 73

requesting documents from nonparties by filing a writing from the clerk of the court, with notice to all parties.

Question 74

relevance of discovery materials

Answer 74

the material must be relevant to the subject matter of the pending action - relevant means reasonably calculated to lead to admissible evidence

Question 75

discovery protocol for electronically stored informaton

Answer 75

a party who anticipates her response to discovery will require her to produce ES proposes a discovery protocol for ES within 21 days of being served with request (28 if the request accompanied the complaint. if the other party doesn’t agree to the protocol, the parties must make a good faith effort to meet w/in 15 days to work it out

Question 76

discovery of ESI

Answer 76

parties do not need to produce ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost. on motion to compel discovery, the party must show the burdens or costs rendering the material not reasonably accessible. even if shown, the court can still order discovery if the requesting party shows good cause

Question 77

personal jurisdiction

Answer 77

first ask: is there a state basis (residence in state, long arm statute, NRMA)
second, ask: is there a constitutional basis (Does D have sufficient minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice?)

Question 78

perpetuation of testimony

Answer 78

filing verified petition in court under oath to seek testimony of people attempting to leave the country even before a law suit has been filed

Question 79

can a party seek discovery of the other side’s insurance coverage even though it wouldn’t be admissible at trial?

Answer 79

yes

Question 80

in a case where P seeks punitive damages, can he get information about D’s net worth and gross earnings?

Answer 80

yes, it’s relevant because to punish D, we must know how much money they have

Question 81

Can a party respond to an interrogatory by referring the requesting party to documents in which the answers can be found?

Answer 81

yes, if done in sufficient detail

Question 82

third party beneficiary

Answer 82

can sue in his own right even if he’s not mentioned in contract

Question 83

joint obligors and tortfeasors

Answer 83

P can sue one of them, some of them, or all of them at her option. P can sue one and then sue others later. The fact that P may be barred from suing one or settles with one does not bar her from suing the others, though settlement with one can reduce the amount received by judgment against another. payment of the entire judgment by one discharges all.

Question 84

Suing or being sued as a partnership

Answer 84

partnership can sue or be sued in its own name.

Question 85

nonjoinder

Answer 85

deficiency of parties

Question 86

misjoinder

Answer 86

excess of parties

Question 87

adding parties

Answer 87

parties can be added by court order on P’s motion and filing an amended complaint. any new parties must be served with process and file responsive pleadings

Question 88

indispensable / necessary parties

Answer 88

court will not dismiss for failure to join necessary party without first permitting the party to attempt to join the missing party. but a court will dismiss if the party cannot be joined and is indispensable.

Question 89

Persons to be joined if feasible

Answer 89

person who is subject to service of process must be joined if complete relief cannot be accorded in his absence or he claims an interest in the action and is so situated that the disposition of the action w/o him may impair his ability to protect that interest or leave other parties at a substantial risk of incurring multiple or inconsistent obligations. if such person should be a plaintiff but refuses to join, he may be made a defendant or involuntary plaintiff

Question 90

when joinder is not feasible

Answer 90

court must determine if the action can move forward in equity and good conscience or if it must be dismissed, considering to what extent a judgment without that person would be prejudicial, extent to which protective matters could lessen prejudice, whether judgment without the absentee would be adequate, and whether P would have an adequate remedy if the suit is dismissed for nonjoinder

Question 91

joinder of executor or administrator

Answer 91

if the case relates to acts of the decedent, the executor or administrator is sued in their representative capacity, with the caption of the case indicating that capacity. If the suit relates to acts by the executor or administrator as an individual (like entering into contract w/ accountant on behalf of estate), then can sue i neither capacity but must be sued not as representative of the estate

Question 92

suing or being sued as a minor

Answer 92

As plaintiff, sue in her own name by whoever is her next friend. Court will not disturb choice of next friend unless there is a conflict of interest or impropriety. Judgment in favor of minor will not necessarily be disturbed by failure to sue through next friend.

As D, sue the minor in his own name, but ask clerk or the court to appoint a guardian ad litem who must be present throughout trial. if none is appointed but the minor is represented by an attorney who enters an appearance, the judgment will be valid. However, must have a guardian ad litem to encumber a minor’s land

Question 93

Suing or being sued as a person under disability

Answer 93

if he has substantial estate, usually a formal incompetency proceeding happens which results in appointment of a fiduciary to act for the incompetent person. such a fiduciary may be a committee or guardian or conservator. if such fiduciary is appointed, suit by or against the person under disability will be through the fiduciary. if person under a disability has not had a fiduciary appointed, then a guardian sues or they sue in their own name through a next friend. if a person with a disability is D, then judgment will be valid if represented by a lawyer, unless it is to encumber land.

Question 94

suing an incarcerated person

Answer 94

while they are in custody, you cannot sue an incarcerated person, you must have a committee appointed and sue them

Question 95

survival and revival

Answer 95

in Virginia, all causes of action survive the death of any P or D. If P dies during suit, the executor must make a motion to substitute himself as P. fi party has some other change in civil status (like being incarcerated or becoming disabled), the case survives but must be revived in the representative’s name. If D is incarcerated during suit, then P can continue to pursue but must revive the case against D’s committee.

Question 96

filing a counterclaim

Answer 96

in circuit court, D must file within 21 days of service of process on her. in GDC, D must file any time before trial

Question 97

compulsory counterclaim

Answer 97

there is no compulsory counterclaim in Virginia. D has the choice of whether to assert the claim, even if its transactionally related.

Question 98

counterclaims

Answer 98

do not need to be transactionally related too P’s claim. can be for any claim, under any theory, that D has against P. however, if there are multiple plaintiffs, D’s claim must be against all plaintiffs jointly, so he cannot sue for an unrelated claim against P1 only. Counterclaims do not need to be served formally. After counterclaim, P has 21 days to respond. Counterclaim can exceed P’s claim, but if in GDC, cannot exceed the jurisdictional limit.

Question 99

cross-claim

Answer 99

claim against co-party. permissive, never compulsory. must be transactionally related to the underlying case. can be asserted against one of several co-parties. historically, you have needed to serve the cross-claim with summons, which may not be true anymore, but no clear case law. cross claimant must file within 21 days of service of process or anytime before trial if in GDC. cross-defendant has 21 days to respond.

Question 100

impleader

Answer 100

when defending party wants to join a third party from whom he will seek indemnity or contribution from on the claim against him. D’s pleading is called a third party complaint. D has a right to file within 21 days after filing first responsive pleading, but may seek leave of court to do so later. in GDC, must do so within 10 days after service or up until trial date, whichever is earlier. must serve process on third-party D (third party complaint and summons). P can make claim against TPD and TPD can make claim against P if arising from same t/o as the underlying case

Question 101

Contribution among tortfeasors

Answer 101

a defending party can implead anyone who may owe him indemnity or contribution on the underlying claim. one important way is that tortfeasor can seek contribution from joint tortfeasor if tort is negligence and involves no moral turpitude. however, cannot implead a joint tortfeasor if P could not recover against them

Question 102

interpleader

Answer 102

holder of real property or personal property knows there are others who claim a right to it, the they can interplead and force them to litigate in a single proceeding and claim that he should be able to keep the property. in GDC can order interpleader as to property worth 25k or less or in any amount for earnest money deposit in a land sale. GDC cannot issue an injunction against pursuing other related proceedings. Circuit court hears claims over 25k and can enjoin parties from litigating in other proceedings.

Question 103

intervention

Answer 103

when an absentee seeks to join a pending case, they must file a petition for intervention. this is approved at the court’s discretion and is only available at circuit court. there are no time limits prescribed. the claim or defense in intervention must be related to the case. the idea is that the court may be able to wrap up the whole dispute by allowing intervention. if petition is granted, then intervenor-plaintiff would file a complaint and serve it formally with process. defending parties then respond as they would to any complaint. if intervenor-defendant is successful, they file an answer in intervention

Question 104

class action

Answer 104

no class action in Virginia state court

Question 105

wrongful death

Answer 105

action brought by decedent’s personal representative. if there are no beneficiaries, damages pass too the decedent’s intestate takers. jury decides who gets how much and award can include another relative of decedent who was part of decedent’s household and dependent on decedent for support. categories of damages are: sorrow, anguish, lost companionship; services and income provided by decedent; medical and funeral expenses; and punitive damages for wanton and willful misconduct. last 2 must be stated separately in verdict. if victim is injured and brings action for personal injuries before he dies and dies from the injuries, substitute personal representative as P and sue for wrongful death. beneficiaries cannot recover for pain and suffering of decedent but can recover punitive damages. cannot recover punitives from an estate

Question 106

declaratory judgment

Answer 106

circuit court only. litigant wants declaration of rights in situation where there’s actual controversy. in that or later proceeding can seek consequential damages

Question 107

partition of realty

Answer 107

circuit court only - category A venue. can come up if co-owner wants to be free of other owner or creditor of co owner who has lien on. co-owner’s interest wants to have that portion sold to satisfy debt.

Question 108

partition in kind

Answer 108

divides property amongst various interested parties. preferred outcome and must be sought first by court.

Question 109

partition by allotment

Answer 109

court allows one or more of the co-owners have the land and orders them to pay off the others. must first determine partition in kind is not practicably available

Question 110

partition by sale

Answer 110

if partition in kind or by allotment are not feasible, court orders sale of land and divides proceeds.

Question 111

action to establish boundaries

Answer 111

circuit court only as it concerns title or boundary to realty. category A venue. basically a declaratory judgment to establish boundaries between contiguous adjoining lands. non-tortious, so no rents or damages. order just describes boundary

Question 112

ejectment

Answer 112

circuit court only, category A venue. P must be out of possession of realty and want to eject person in possession. object is to determine title and obtain possession. P may seek rents and profits n same action, D can get offset for improvements made to property

Question 113

unlawful detainer

Answer 113

less formal than ejectment, does not determine title or boundaries to land. generally regarding leaseholds - LL sues to oust tenant and recover possession of realty that landlord clearly owns. P can recover back rent and damage to property. category A venue, available in circuit court OR GDC. no limit on amount in controversy. judgment does not bar later action for ejectment, trespass, or later-accruing rents.

Question 114

detinue

Answer 114

available in GDC if controversy does not exceed 25k or in circuit court if controversy exceeds 4500. Detinue is to recover personal property or its value and damages for detention. P must have an interest and 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.

Question 115

pretrial seizure in detinue

Answer 115

P can get immediate possession ex parte (w/o notice to other side) by verified petition that demonstrates description of property and showing P’s right to it, and
risk that the property will be damaged or hidden or removed, and by posting bond of twice the value of the property, but the sheriff cannot enter D’s house forcibly to seize the property. D can get the property back by posting bond in the amount of twice the value of property and giving notice t P.

Question 116

medical malpractice

Answer 116

within 30 days after responsive pleading is filed, either side may request review by medical malpractice review panel of judges, attorneys, and health care providers. the panel is established by the VA Supreme Court. the request stays the tort action. the panel decides the case and the parties can accept the decision or resume the tort action. if the tort case is resumed, the panel’s opinion is admissible in evidence, but is not conclusive. panel members may testify. opinion or record before the panel must contain evidence of the standard of care. can ask panel members about their deliberative process in discovery. statute applies to cases against health care providers including doctors, dentists, chiropractors, pharmacists, etc.

Question 117

enforcement of arbitration agreement and awards

Answer 117

circuit court has jurisdiction to determine, upon timely petition, whether there is an arbitration agreement and to order the parties to arbitrate the dispute. if contract is silent on issue of arbitration, then court will determine if dispute is subject to arbitration.

Question 118

confirming, vacating, or modifying arbitration awards

Answer 118

party can petition circuit court to confirm arbitration award into a judgment vacate or modify the award on limited grounds (fraud, corruption, undue influence on arbitrator, or if arbitrator acted beyond power or improperly to the prejudice of a party, or improper refusal to postpone arbitration hearing or hear material evidence)

Question 119

general rule of accrual for action for statute of limitations

Answer 119

runs from accrual of the cause of action, meaning the date of injury or breach - not from the time P discovered or should have discovered harm

Question 120

accrual for fraud, mistake, undue influence claims

Answer 120

when P discovers the harm (or when reasonable person would have discovered)

Question 121

accrual of malicious prosecution claim

Answer 121

when underlying case ends

Question 122

accrual of contribution claims

Answer 122

accrues when one pays more than her fair share

Question 123

accrual of malpractice through continuous treatment/service

Answer 123

accrues at the end of related course of treatment

Question 124

statute of limitations for personal injuries

Answer 124

2 years

Question 125

statute of limitations for nonphysical personal torts (like malicious prosecution)

Answer 125

2 years

Question 126

defamation statute of limitations

Answer 126

1 year

Question 127

statute of limitations for property damage

Answer 127

5 years. if continuing nuisance, maybe one cause of action with statute starting from beginning, but if intermittent nuisance, could be different cause of action each time nuisance starts up again - not clear, argue on facts

Question 128

statute of limitations for property damage for sales covered by the UCC

Answer 128

4 years

Question 129

statute of limitations for fraud

Answer 129

2 years

Question 130

statute of limitations for wrongful death

Answer 130

2 years from death, but complaint is barred if decedent was injured more than 2 years before his death and died from those injuries without bringing suit

Question 131

statute of limitations for written contracts

Answer 131

5 years

Question 132

statute of limitations for unwritten contracts

Answer 132

3 years

Question 133

statute of limitations for unlawful detainer

Answer 133

3 years

Question 134

how does defendant raise a statute of limitations defense?

Answer 134

special plea - cannot be raised in demurrer since it alleges new facts

Question 135

who bears burden of proof about statute of limitations

Answer 135

defendant bears burden

Question 136

tolling the statute of limitations

Answer 136

tolling means to stop it from running. minority or unsound mind can toll statute, so statute won’t start running until party is 18 years old

Question 137

tolling medical malpractice cases

Answer 137

minority does not toll medical malpractice cases if the child was 8 or older when the cause accrued. if the child was younger than 8 when the medical malpractice occurred, then he may sue until his 10th birthday.

Question 138

mechanics of statute of limiitations

Answer 138

must file the case, not serve process, before the statute runs. filing tolls the statute. if P files suit against D one week before statute runs and then 2 weeks later takes a nonsuit, the P has a right to refile within 6 months or limitations period, whichever is longer.

Question 139

statute of limitations with case against unknown defendant

Answer 139

case may be brought against an unknown owner or operator of a car as “Doe” (john or mary) and the statute of limitations will be tolled for 3 years to give P a chance to discover the identity of the defendant. if the Doe defendant has actual knowledge of the suit within the statute of limitations, an amendment to name him specifically after the statute runs may be deemed timely

Question 140

statute of limitations for counterclaims and cross-claims

Answer 140

P filing the case tolls the statute for his own claims and for counterclaims and cross-claims arising out of the same T/O as P’s claim

Question 141

statute of limitations for impleader

Answer 141

if P files within 30 days of the expiration of the statute of limitations, D may implead up to 60 days past the statute’s expiration

Question 142

Nonsuit

Answer 142

P decides to drop the case. P has a right to take nonsuit without prejudice unless jury is retired from bar, nonjury case submitted to court for decision, motion to strike evidence is granted, or demurrer or special plea is fully argued and awaiting decision. there is only one nonsuit as a matter of right. others can be allowed by the court with notice to all other parties. Party taking nonsuit must inform court of all previous nonsuits, and that number must be reflected in court order

Question 143

refiling after nonsuit

Answer 143

P must file again in same court unless it lacks jurisdiction or venue or unless good cause is shown to litigate elsewhere. P can refile in federal court. P should refile within 6 months or the limitations period, whichever is longer.

Question 144

Default

Answer 144

party is in default if he fails to respond to an affirmative pleading within the allowed time. The court enters default automatically.

Question 145

What does D waive if in default?

Answer 145

D waives notice to further proceedings, but notice will be given to a counsel of record if there is one. Waives jury trial at further proceedings.

Question 146

Further proceedings when D is in default

Answer 146

P moves for entry of default judgment. If the damages are liquidated, a judgment is entered for that amount. if damages are not liquidated, P may move for hearing on damages, where there may be a jury if P requests. D can appear at hearing on damages but cannot present evidence on liability, only on damages.

Question 147

summary judgment

Answer 147

granted if no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. any party can move for summary judgment. parties cannot base on deposition testimony unless all are agreed and cannot base motion on affidavit testimony. a conflict in the pleadings creates a triable issue of material fact, so if pleadings show dispute, summary judgment is denied. so only granted if pleadings, admissions, and orders show no genuine dispute of material fact

Question 148

when is there a jury trial in circuit court

Answer 148

under state law, guaranteed jury for case at law but not at equity. if there are some legal issues and some equitable issues, the juries hear the legal issues first and the equity issues are then heard by the judge.

Question 149

requesting jury trial

Answer 149

must file written demand within 10 days after service of the last pleading raising a jury triable issue. leave to amend does not extend this unless the court specifically says so. if there is a right to a jury but no party demands it, there is a bench trial unless the court orders a jury

Question 150

jury size

Answer 150

if the case involves more than $25,000, then there are 7 jurors. if the case involves $25,000 or less, there are 5 jurors. but if parties consent, there may be 3 jurors.

Question 151

voir dire challenges

Answer 151

parties may strike unlimited jurors for cause and each side has 3 peremptory challenges that don’t have to be explain but must be exercised in a race-neutral and gender-neutral way

Question 152

voir dire procedure

Answer 152

a panel begins with the number of jurors to be selected plus 6 for the peremptory strikes. after voir dire, parties exercise strikes for cause. when one is stricken. another is brought onto panel. then each side uses its peremptory strikes. if there are extra jurors after all peremptory strikes, then the remainders are stricken by lottery. the jury is then sworn in

Question 153

alternate jurors

Answer 153

extras, used when court thinks some juror may be excused during trial. alternates, selected at random, are not told of their status until deliberations are to begin.

Question 154

jury instructions

Answer 154

read to judy by the court. objections are waived if not made before the jury is charged.

Question 155

can judge allow jury to view premises

Answer 155

yes if necessary to a just adjudications

Question 156

can judge allow pleadings into the jury room

Answer 156

no

Question 157

can judge allow exhibits into the jury room

Answer 157

yes in court’s discretion

Question 158

can judge give the jury her opinion of the credibility of witnesses

Answer 158

no

Question 159

sequestering

Answer 159

ordering witnesses not be allowed in the courtroom when other witnesses are testifying. court can grant motion to sequester witnesses. if a witness who was supposed to be sequestered sneaks back into the courtroom, court can allow them to testify in the court’s discretion.

Question 160

juries in equitable actoins

Answer 160

can be used in certain situations. any party has right to demand jury to decide facts regarding a special plea. the jury findings will be binding on the court. the court may on its own motion refer an issue out of chancery for findings of fact (often on conflicting evidence). this opinion is advisory. any party may file affidavit that the case will be rendered doubtful by conflicting evidence of another party, where the court may refer issues out of chancery for an advisory jury opinion.

Question 161

can a judge ignore the findings of an advisory jury

Answer 161

no, can be an abuse of discretion to disregard findings supported by substantial evidence

Question 162

presentation of evidence at GDC

Answer 162

usually testimony is given orally. in personal injury case, party may present evidence of treatment of injury by health care provider’s report or by hospital records

Question 163

medical reports in GDC

Answer 163

written medical report by treating health care provider may be admitted if written notice of intent to use is given to other party at least 10 days in advance of trial. health care provider’s report must be accompanied by a sworn statement by the provider that the party was treated by her; the information contained in the report is true, accurate, and fully describes injury; and any statement of costs contained in the report is true and accurate

Question 164

hospital records in GDC

Answer 164

copies of hospital records may be admitted if accompanied by a sworn statement of the person who had custody of the records that the copies are true and accurate

Question 165

estimate of motor vehicle damages over $2500

Answer 165

in an action to recover damages to a motor vehicle in excess of $2500 in Circuit Court or GDC, evidence of damages may be admitted by itemized evidence or appraisal of person who repaired vehicle. in estimate, repair person must state under oath that: he is a motor vehicle repair person qualified to determine the amount of damages; the length of time that he has done such work; and the name and address of his employer. the estimate must be mailed to the adverse party at least 7 days before trial, or it cannot be admitted without adverse party agreement.

Question 166

estimate of motor vehicle damages less than $2500

Answer 166

estimate can be used but does not need to be mailed or delivered to adverse party in advance of trial

Question 167

presentation of testimony for legal actions in circuit court

Answer 167

usually by oral testimony, but deposition testimony can be used

Question 168

trial of equitable causes of action in circuit court

Answer 168

usually evidence is by deposition transcript without live testimony. can be oral if court desires, and will be oral if court uses jury.

Question 169

ore tenus

Answer 169

oral testimony in equitable actions in circuit court

Question 170

use of commissioners

Answer 170

matters concerning equity causes of action may be referred to a commissioner, who is not a judge, but who assists the judge in deciding the case. the judge sends matters to the commissioner by a decree of reference, which spells out what the commissioner is to do. usually commissioner is asked to determine facts and suggest conclusions of law.

Question 171

when may commissioners in chancery be used

Answer 171

all parties and court agree or court finds god cause on facts of case. frequently tested on exam in the context of partition of land

Question 172

capabilities of commissioner

Answer 172

commissioner can subpoena witnesses and take testimony. she takes record of evidence she finds inadmissible. she files report with the clerk of the circuit court and notifies counsel of record of that fact.

Question 173

after the commissioner files report, how long do the parties have to file objections in court?

Answer 173

10 days

Question 174

is the commissioner’s report binding?

Answer 174

meant to assist and not bind the judge. as to matters of fact, the judge is free to make her own findings, but may be reversed for abuse of discretion if she ignores findings that are supported by the evidence. on maters of law, the commissioner’s report is entitled to no deference.

Question 175

motion to strike the evidence

Answer 175

functional equivalent of motion for judgment as a matter of law. standard to grant is that reasonable people could not disagree as to the result. the fact that D moves at end of P’s case does not estop D from introducing more evidence. if the judge feels standard s met, he grants motion to strike evidence and enters summary judgment

Question 176

verdict

Answer 176

jury’s finding. verdict must be unanimous unless parties stipulate otherwise. if the verdict isn’t unanimous and there is no stipulation, there is a hung jury and mistral

Question 177

relief granted by jury

Answer 177

the relief sought in the complaint is the most that the P can recover.

Question 178

judgment

Answer 178

official announcement by the court of the decision in a legal cause of action

Question 179

decree

Answer 179

official announcement by the court of the decision in an equitable cause of action

Question 180

post trial motion in GDC

Answer 180

party can seek rehearing no later than 30 days after entry of judgment. court must rule on motion no later than 45 days of the entry of judgment.

Question 181

post trial motion in circuit court

Answer 181

party must make motion within 21 days.

Question 182

in the breast of the court

Answer 182

21 day period where the circuit court retains jurisdiction. every final judgment or decree remains under the control of the court for 21 days. during this period, the court can suspend, vacate, or modify. the judgment or decree. court must suspend judgment if it wishes to take action after 21 days.

Question 183

motion to set aside verdict as contrary to evidence

Answer 183

equivalent of renewed motion for judgment as a matter of law. it is not required for a party to move to strike the evidence before filing.

Question 184

motion for new trial

Answer 184

move for new trial no later than 21 days after judgment. grounds include: prejudicial error or misconduct by court (erroneous jury instruction, etc); misconduct of party, attorney, juror, or third party; new evidence has been discovered (could not have been undiscovered due to lack of diligence); unfair surprise by evidence presented at trial that has material outcome on trial; excessive or inadequate damages

Question 185

test for new trial due to verdict being too high or low

Answer 185

does damages figure shock the conscience

Question 186

should a judge order a new trial on all issues?

Answer 186

yes if damages are not separable from liability

Question 187

can a judge order a trial on damages only?

Answer 187

yes, if liability for damages is well established.

Question 188

remittitur

Answer 188

judge telling P to accept reduced award for damages or go to new trial

Question 189

options if judge suggests remittitur

Answer 189

accept without protest; accept under protest and try to appeal order to remit; or reject remittitur and go through new trial and, if still aggrieved, attempt to appeal on ground that the ground of new trial was error. to do ths option, P must make exception to the order of new trial after rejecting remittitur

Question 190

additur

Answer 190

if liability si clear but verdict is obviously inadequate, court can order new trial or suggest additur, meaning defendant must pay higher amount or submit to new trial.

Question 191

bill of review

Answer 191

for equity cases only, a party can seek review of final decree for up to 6 months after entry. grounds for bill of review is can file with leave of court to correct errors apparent on face of record or can file with leave of court based upon new evidence

Question 192

final judgment rule

Answer 192

judgments and decrees must be final to be appealed. court entering nonsuit against D’s objection is appealable final judgment

Question 193

interlocutory appeals

Answer 193

interlocutory orders are appealable if the court certifies: 1) there is substantial ground for difference of opinion; 2) there is no clear VA appellate procedure; 3) determination of the issues will be dispositive of a material aspect of the case; and 4) court and parties agree that it is in the parties’ best interest to seek interlocutory review. must file petition with supreme court within 10 days of certificate by circuit court

Question 194

appeal of partial final judgment

Answer 194

partial final judgment is final judgement as to one party if multiple parties are involved. may be appealable if the trial court enters a partial final judgment on the claim, the interests involved are separate and distinct from those remaining, results of appeal on the partial final judgment will not affect decisions in remaining causes of action, and results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgement.

Question 195

appeal from GDC to circuit court

Answer 195

final judgements that involve more than $20 are appealable to circuit court. circuit court hears case de novo. must fie notice of appeal in GDC no later than 10 days after entry of judgment, post bond and pay writ tax and costs in GDC no later than 30 days after entry of judgment (10 days n unlawful detainer), and seeking rehearing does not alter tmieline

Question 196

appeal from circuit court to Virginia court of appeals

Answer 196

right of appeal from final judgments and rulings granting or denying injunctions in domestic relations cases and in some administrative matters. file notice of appeal in circuit court w/in 30 days after entry of appealable decision

Question 197

appeal from circuit court to virginia supreme court

Answer 197

allowed in civil cases involving at least $500. discretionary - supreme court not required to hear an appeal in general civil case.

Question 198

preservation of issues for appeal

Answer 198

must make exception in trial court with reasonable certainty at the time of the ruling. stating the judgment is contrary to the law is not reasonable certainty. failure to object to jury instructions before jury is charged waives objection

Question 199

adverse authority on appeal

Answer 199

counsel is under obligation to bring adverse authority to the court’s attention

Question 200

mechanics of appealing from circuit court to supreme court

Answer 200

file notice of appeal with the clerk of circuit court no later than 30 days after appealable judgment or decree (post-judgment motion does not affect timing unless court suspended judgment within 21 days). mail or deliver a copy of the notice of appeal to counsel for other parties. notice states whether they will file transcript or written summary of trial and, if transcript, certify it’s been ordered from court reporter. successful P can execute no judgement even f D has filed notice of appeal - to avoid, D must post a suspending bond in amount to be sent by trial court (if P appeals, must post appeal bond if Supreme Court grants appeal). clerk of circuit court prepares record for transmission to supreme court - consists of pleadings, jury instructions given and refused, exhibits, orders entered, etc.

Question 201

transcript as part of record

Answer 201

transcript only part of record if filed with clerk of circuit court no later than 60 days of entry of judgment or decree. must notify other counsel within 10 days after filing. if not filing transcript, can prepare written statement of facts, testimony, and other incidents of the case. must be filed with circuit court within 55 days of entry of judgment or decree and mailed to other counsel noting that it will be presented to the trial judge no earlier than 15 and no later than 20 days after filing. any party can object to transcript or written statement if erroneous or incomplete. court corrects errors and signs and then it’s part of the record.

Question 202

filing petition for appeal with supreme court

Answer 202

file 7 copies of the petition (contains parties, assignments of error w/ particularity, certificate re: whether oral hearing on petition is desired (only counsel for appellant would be heard)) for appeal with the Clerk of the Supreme Court no later than 90 days of appealable judgment or decree asking Supreme Court to hear the case. appellee may file brief in opposition to petition for appeal and state grounds of cross-appeal - court need not wait to rule on petition

Question 203

ruling on petition for appeal with supreme court

Answer 203

supreme court may deny petition, appellant may request rehearing no later than 14 days of notice of denial. supreme court may grant petition, in which case it sends certificate of appeal to all parties. they file briefs and have oral argument on the merits unless waived. f petition is granted, appellant must file appeal bond within 15 days of certificate. if bond is not n proper amount, other party may object within 21 days of certificate, and if not fixed, court may dismiss appeal

Question 204

preclusive effect of judgments

Answer 204

determining if judgment/decree entered in case 1 precludes parties from litigating in case 2. if case 2 is in a different court system from case 1, the law of the system that decided case 1 will be used to decide preclusion.

Question 205

case 1 is in Virginia state court, judgment is entered. case 2 is in federal court. what law of res judicata and collateral estoppel is used?

Answer 205

virginia law

Question 206

res judicata

Answer 206

claim preclusion. can only sue on a cause of action once. requirements:

case 1 and 2 brought by same claimant against same D; case 1 ended in valid, final judgment or decree on the merits - any judgment is on merits unless based on jurisdiction, venue, or indispensable parties; case 1 and 2 involved assertion fo same cause of action. in VA, where personal injuries and property damage arise from same T/O, they are different causes of action

Question 207

collateral estoppel

Answer 207

issue preclusion. precludes relitigation of particular issue that was litigated in case 1. requirements:

1. case 1 ended in valid final judgment on merits.
2. issue presented in case 2 was actually litigated and determined in case 1
3. issue was essential to judgment in case 1

collateral estoppel may be asserted only against one who was party to case 1. it is always ok for someone who was party to case 1 to use collateral estoppel in case 2. Virginia does not allow nonmutual collateral estoppel.

Question 208

if the judgment or decree in case 1 has been appealed, is the judgment or decree entitled to res judicata or collateral estoppel?

Answer 208

under virginia law, no. under federal law, yes.

Question 209

A sues B in Virginia state court. B sues A about the same event in federal court. both cases are pending at the same time. is there any role for preclusion?

Answer 209

no. no final judgment entered

Question 210

can federal court avoid duplicative litigation if A sues B in Virginia state court and B sues A about the same event in federal court?

Answer 210

Claim by B against A was not compulsory countercllaim in state case - because no such thing in Virginia. When B sued A in federal court, A’s claim against B was already pending, so not counterclaim in federal case. Federal court cannot really abstain ether here. whichever goes to judgment first may be used for preclusive effect

Question 211

Merger

Answer 211

res judicata when claimant won case 1

Question 212

barred

Answer 212

res judicata when claimant lost case 1

Question 213

supersedeas bond

Answer 213

one that suspends operation of judgment on appeal

Question 214

pendente lite

Answer 214

during littigation

Question 215

motion in limine

Answer 215

pretrial motion, usually to determine whether jury should hear certain evidence.