VA Civ Pro Flashcards
1
Q
VA Appeals - By Right or Petition
A
Mostly by Right
2
Q
Steps to Appeal Civil Case
A
- File Notice of Appeal in Circuit Court
2. File Appeal Brief in VA Ct of Appeals
3
Q
Appeals of Right (8 types)
A
- Final decision of a circuit court in a civil matter.
- Final decision of a circuit court on appeal from a decision of an administrative agency.
- Final decision of circuit ct on appeal from a grievance hearing issued pursuant to Code 2.2-3005 (Public Employees)
- Final decision of Workers’ Compensation Commission.
- Final judgment, order or decree of a circuit ct involving:
a. Application for a concealed weapons permit.
b. Involuntary treatment of prisoners
c. Declaratory or injunctive relief under Code 57-2.02 (Religious Freedom) - Interlocutory decree or order pursuant to 8.01-267.8, 8.01-626, or 8.01-675.5
- Final conviction in a circuit court of a traffic infraction or a crime
- Appeal of a Partial Final J’ment in circuit ct.
4
Q
Appeals by Petition
A
- Commonwealth (and county, city or town) criminal appeals that were previously brought by writ of error under Code 19.2-317
- Commonwealth appeals in criminal cases pursuant to Code 19.2-398 (pretrial appeal dismissing warrant, info, summons, etc.)
5
Q
Original Jurisdiction of Ct of Appeals
A
- Writs of mandamus, prohibition and habeas corpus in any case in which the Ct of Appeals would have appellate jurisdiction.
- Writs of actual innocence based on non-biological E.
6
Q
Notice of Appeal Procedure
A
- Notice of Appeal filed within 30 days after entry of final j’ment or appealable order.
- Notice of Appeal filed in Clerk’s office of trial court, tribunal or commission from which appeal taken.
- Copies of notice and certificate must be delivered to all opposing counsel, unrepresented parties, Clerk of Court of Appeals, and (in crim cases) Atty Gen’l WITHIN 10 DAYS.
- Notice of Appeal must be accompanied by a $50 filing fee.
7
Q
Appeal Bonds (Civil)
A
Party filing notice of appeal must SIMULATENOUSLY file in the TRIAL court, lower tribunal or commission an appeal bond of $500 or irrevocable letter of credit. (but clerk of ct of appeals may file notice of appeal even when filing fee is up to 10 days late.)
Party filing appeal bond must give notice in writing to counsel for appellee
8
Q
Filing of Transcripts
A
Must be filed w/ clerk of the TRIAL CT within 60 DAYS after final j’ment.
9
Q
What kind of trial court rulings can be preserved as a BASIS FOR REVERSAL ON APPEAL?
A
Rulings that HAVE BEEN OBJECTED TO, w/ the GROUNDS GIVEN FOR THE OBJECTION
No ruling of trial ct can be basis of reversal unless objection was STATED W/ REASONABLE CERTAINTY AT THE TIME OF THE RULING.
10
Q
What are the required contents of an Appellants Opening Brief?
A
- brief stmt of NATURE OF CASE and of THE MATERIAL PROCEEDINGS IN THE TRIAL COURT
- statement of QUESTIONS PRESENTED ON APPEAL, w/ reference to the transcript, written stmt or other doc where each question was preserved in the trial ct
- STATEMENT OF THE FACTS
- stmt of the PRINCIPLES OF LAW THAT GOVERN CASE; and
- SHORT CONCLUSION that states the RELIEF REQUESTED.
11
Q
Collateral Estoppel (Gen’l Rule)
A
ISSUE Preclusion
Final j’ment for the P or D is CONCLUSIVE in a SUBSEQUENT ACTION on a different cause of action between them or their privies as to issues of fact (1) actually litigated and (2) essential to the J’ment in the 1st action.
Precludes parties to a prior action from litigating in a subsequent action any factual issue that was (1) actually litigated, and (2) ESSENTIAL to a valid, final j’ment
12
Q
Collateral Estoppel (MUTUALITY)
A
C/E may not be used by a party if MUTUALITY is lacking in earlier proceeding.
Since j’ment can’t be used against a person who wasn’t a party, that person is barred from taking advantage of the j’ment.
A person IN PRIVITY w/ a party in earlier litigation may be subject to C/E
13
Q
RES JUDICATA
A
CLAIM Preclusion
precludes parties from relitigating the SAME CAUSE OF ACTION when a FINAL J’MENT was entered.
14
Q
4 Req’ts for COLLATERAL ESTOPPEL
A
- Parties to prior and subsequent proceedings (or their privies) must be the same.
- Factual issue sought to be litigated must have been LITIGATED IN THE PRIOR ACTION.
- Factual issue must have been ESSENTIAL TO THE J’MENT in the prior action.
- prior action must have resulted in j’ment that is VALID, FINAL, and AGAINST THE PARTY AGAINST WHOM THE DOCTRINE IS SOUGHT TO BE APPLIED.
15
Q
Breach of UNWRITTEN K S/L
A
3 Years
Starts WHEN BREACH OCCURRED
16
Q
Breach of WRITTEN K S/L WHEN K SIGNED BY PARTY TO BE CHARGED
A
5 Years
K must be (1) in writing, and (2) signed by the party to be charged
17
Q
Breach of Written K S/L (Written BUT NOT SIGNED BY PARTY TO BE CHARGED)
A
3 Years after the cause of action accrued
18
Q
Defamation S/L
A
1 Year from when cause of action accrued
19
Q
Defamation - When does COA accrue?
A
Begins to run from the date injury is sustained
NOT when resulting damage is discovered
COA accrues on date THE DEFAMATORY ACTS OCCURRED
20
Q
What is a Nonsuit?
A
So long as no x-claims or counterclaims, P has absolute right to request dismissal w/o prejudice & has right to re-file claim
P may take 1 nonsuit as a matter of right (w/ limitations
21
Q
When must nonsuits be taken
A
before
(1) a motion to strike the E has been sustained,
(2) jury retires from the bar or,
(3) if no jury, before submitted to the court for decision
22
Q
Nonsuits - def’n of “the action”
A
Means only the action pending in the court –> only counts or claims remaining in a case at the time nonsuit is requested
Claims that have been dismissed with prejudice NOT part of pending action
23
Q
Where may sheriff serve summons/complaint
A
Only in her own county/city OR in a contiguous county/city
24
Q
Nonsuits - Period of Refiling
A
Longer of
(1) 6 months, or
(2) Remaining S/L period
25
Who may serve complaint papers
Anyone OVER 18 and who IS NOT A PARTY or OTHERWISE INTERESTED IN THE SUBJECT MATTER OF THE CONTROVERSY
26
Service on foreign corporation - who can be served?
Process must be served on "any officer, director, or registered agent of the foreign corp."
27
When must service occur
Within 1 year of filing lawsuit
28
Service of Process when Service was Improper
Still effective if rec'd within 1 year of filing lawsuit if D received summons and complaint in timely manner --> would mean improper service of no consequence
Forgiveness of improper service does not pertain to cases of divorce and annulment of marriage
29
S/L - Personal Injury
2 years
30
S/L - Fraud
2 years
31
S/L - Injury to Property
5 years
32
S/L - Wrongful Death
2 years
33
S/L - Claims for sale of goods under UCC
4 years
34
S/L - Right of contribution among tortfeasor
3 years
35
S/L - Br of Unwritten K
3 years
36
S/L - Domestic and Foreign Judgments
20 years
37
Waiver of SMJ vs. Venue
SMJ - NOT Waivable --> can be attacked AT ANY TIME
Venue - defects may be waived if not objected in a timely manner
38
What are the common types of suits w/ Category A (Preferred Venue) venue locations?
D may challenge venue if suit brought at location other than specified venue in following cases:
Land - Where land located
Wills - where will was PROBATED (or could've been offered for probate)
Injunctions - where subject proceeding/judgment is
VA Tort Claims Act - claim against state can be brought where claimaint resides or act/omission occurred
Divorce and Annulment - where last cohabitation occurred or where D resides
39
VENUE - Category B
If not Cat A venue, D may object to venue if suit brought at a location other than :
1. where D RESIDES or has principal place of e'ment (if not ind'l, where D has principal office or PPB)
2. Where D has REGISTERED OFFICE, AGENT
3. Where D conducts substantial business activity
4. Where action or any part thereof arose (For K, action arises both where K entered into and where Br occurred)
5. Actions against FIDUCIARIES APPOINTED UNDER CT ORDER
6. Where PERSONALTY LOCATED
7. for delivery of goods, WHERE GOODS REC'D
8. to PARTITION PERSONALTY, where personalty located or where E located; otherwise, where P resides
9. OTHERWISE, where D has property or debts owing to him
10. If all Ds UNKOWN, where P resides
40
VENUE - Multiple Defendants
Venue proper if 1 party entitled to Class A location and suit brought there
Otherwise, wherever venue is proper for any party if venue proper as to at least 1 resident defendant
41
When must D make Objections to Venue and what must they include in objection?
D must object within 21 days (or w/i period of extension of time to file responsive pleadings).
D must set forth where he believes venue is proper
42
Demurrer
Tests legal sufficiency of complaint/aggressive pleadings
Assumes all well-pleaded facts in complaint are true (even if true, complaint doesn't state valid claim for relief)
Even if sustained, J will likely grant leave to amend to cure
43
What is a Motion to Strike the Evidence?
Suggests a failure to prove a NEC element, and ct will grant the motion IF A JURY COULD PROPERLY FIND ONLY ONE WAY
44
Intervention
3rd party can file motion to intervene
Requires LEAVE OF CT
Ct has considerable discretion in deciding such request
Treated as pleading
May assert any claim or defense germane to subject matter of suit
45
What must P show to get an Injunction?
P must show:
1. allege facts showing RECOGNIZED LEGAL RIGHT
2. NO ADEQUATE LEGAL REMEDY
3. injunction FEASIBLE, PRACTICABLE, and EFFECTIVE to vindicate right
4. BALANCE OF EQUITIES WEIGHS IN P's FAVOR
5. wouldn't ADVERSELY AFFECT PUBLIC INTEREST
6. NO EQUITABLE DEFENSES
46
Types of Responsive Pleadings
```
Answer
Demurrer
Special Plea
MTD
Bill of Particulars
```
47
Demurrer vs. MTD
DEMURRER - Equivalent of MTD for failure to state a claim
MTD - For other legal defenses (jurisdiction, venue, and service)
48
S/L of Infant (i.e. Minor)
S/L doesn't begin to run until minor reaches age of majority
49
What is the effect of a Disability on the S/L?
S/L tolled until disability removed
If disability occurs after accrual, period is tolled during disability
50
S/L - What tolls S/L (date of filing or service on D)?
Date of filing
51
S/L - Is S/L tolled when suit filed against wrong party?
No, gen'l rule is the date of filing suit, AGAINST THE CORRECT PARTY, tolls the running of the S/L
52
When can an amendment adding a new CoA RELATE BACK for S/L purposes?
Relate back only if
1. New claim ARISES OUT OF SAME CONDUCT OR TRANSX pled in original CMPT,
2. amending party was RSN DILIGENT in raising the claim, and
3. Parties opposing the amendment WILL NOT BE SUBSTANTIALLY PREJUDICED in litigating merits of the claim
53
S/L - Relation Back for MISNOMERS
Amendments substituting correct party for improper party relate back if:
1. new claim ARISES FROM SAME CONDUCT, TRANSACTION, OR OCCURENCE set forth in the original claim
2. party brought in REC'D SUCH NOTICE OF THE ACTION W/I LIMITATIONS PERIOD that she wouldn't be prejudiced if req'd to defend, and
3. she knew or should have that, but for a mistake of identity, she would have been sued at outset
54
Consideration of Depositions in MSJ
Trial ct barred from considering discovery depositions in support of MSJ
55
Preserving Objection for Appeal
Party must (1) make timely objection, and (2) state the grounds for the objection at the time of the Court's ruling.
If a party files a motion or objection known to the court, don't have to do it again. Filing a response to a motion in limine is sufficient to preserve the objection.
56
Award of Atty's Fees - Gen'l Rule
In the absence of statute or K, ct may not award atty's fees to prevailing party.
57
Atty's Fees - When May They be Granted
When statute or K provides, OR
FRAUD --> J, in exercise of discretion, may award atty's fees to defrauded party
58
Appeals Ct - Standard of Review on Ruling of Law
Ruling of LAW - DE NOVO (no deference to lower court's ruling)
MEANS CT CAN HEAR E NOT INTRODUCED AT TRIAL CT
59
Relief from Defaults and Default J'ments
If default has not yet turned to default j'ment, D may file motion to file late pleading
Std is low = ANY GOOD CAUSE
60
Gen'l Rule re Late Filing of Pleadings
Court has discretion to allow, even when deadline for responsive pleading has passed.
61
Do Affirmative Defenses that ARE NOT Dispositive of Action need to be raised in a responsive pleading?
No
62
What's the proper way to raise S/L as a defense? Can it be raised in a demurrer?
Must be raised as an AFFIRMATIVE DEFENSE in a RESPONSIVE PLEADING
CANNOT be raised in DEMURRER
63
When can't demurrer be filed?
After D files A
64
Factors court considers when determining whether to allow late pleadings
For good cause shown, court has discretion to allow considering:
1. EXTENT and REASON for the delay
2. PREJUDICE to P caused by delay
But, good cause is LIBERAL STD and policy of the rule FAVORS ALLOWING LEAVE
65
Default J'ment - What can/can't defaulted D do/present in hearing on issue of DAM?
CAN'T: offer proof/argument on issue of LIABILITY
CAN: (1) object to P's E re DAM
(2) offer E re QUANTUM OF DAM
(3) participate in JURY SELECTION
(4) submit proposed JURY INSTRUCTIONS
(5) make ORAL ARG on issue of DAM
66
Default J'ment: Amount to be Entered
LIQUIDATED: Amount APPEARING TO THE COURT TO BE DUE
UNLIQUIDATED: Ct will hear E and fix the amount (unless P demands jury, then jury decides)
67
Appeal from GEN'L DISTRICT CT
By Right, but MUST BE FILED W/I 10 DAYS of j'ment
Day of J'ment does NOT count
When last day is Saturday, Sunday, or legal holiday, get to file the next work day
68
What are req'd elements for a Temporary Injunction?
1. LIKELIHOOD OF SUCCESS ON MERITS
2. IRREPERABLE INJURY
3. BALANCE OF HARDSHIPS
4. PUBLIC INTEREST (won't be adverse to public interest)
69
Long-Arm Statute
In order for VA ct to have personal jurisdiction over non-VA resident/corp, long-arm statute must be able to reach D.
D must have SOME TYPE OF CONTACT within VA:
1. TRANSACTS ANY BUSINESS in VA (1 transx enough) --> SINGLE TRANSACTION STATE
2. CONTRACTS TO SUPPLY SERVICES OR THINGS in VA
3. CAUSES TORTIOUS INJURY BY ACT OR OMISSION IN VA
4. CAUSES TORTIOUS INJURY BY ACT OR OMISSION OUTSIDE VA if he regularly does business in VA or other persistent course of conduct from which he derives SUBSTANTIAL REVENUE from goods used or consumed or services rendered in VA
5. CAUSES INJURY in VA BY BREACH OF WTY
6. Has interest in, uses, or possesses REAL PROPERTY in VA
7. CONTRACTS TO INSURE in VA
70
When should Summary Judgment be granted?
when it appears from the pleadings NO DISPUTE AS TO MAT'L FACT and
Rarely granted in VA
NOT AVAILABLE FOR DIVORCE OR ANNULMENT
71
When can depositions be used in MSJ?
ALL PARTIES AGREE
ALL PARTIES ARE BUSINESS ENTITIES and AMT IS > $50K
72
Subject Matter Jurisdiction - Waivability
NOT WAIVABLE
SMJ may be raised AT ANY TIME, even for 1ST TIME ON APPEAL, and ct may raise SUA SPONTE
73
Service - Who May Accept
FAMILY MEMBER OVER 16 who resides w/ D
at USUAL PLACE OF ABODE
must EXPLAIN SIGNIFICANCE OF SERVICE
74
What are the various forms of Service (in order of preference)?
In descending order and only if preferred method fails.
1. Personal service
2. Family member over 16 at usual place of abode and explain significance
3. Post copy on front door of usual place of abode and MAIL COPY at least 10 days before taking default judgment
75
What is a Bill of Review?
Bill in equity that requests a J reopen a case in which a final order has been entered.
May be filed w/i 6 MONTHS OF FINAL ORDER.
76
Trial Court's Jurisdiction After Entry of Order
Case lies in the BREAST OF THE CT for 21 DAYS after final j'ment
77
Bill of Review
Equitable remedy that allows review of ct decision by a party:
1. W/I 6 MONTHS
2. ERROR OF LAW, or NEWLY DISCOVERED E (that couldn't have been discovered earlier with RSN diligence)
78
Motion to Strike the Evidence
Suggests failure to prove a NEC element
Ct will grant if a jury COULD PROPERLY FIND ONLY ONE WAY
Can be made at conclusion of P's E, D's E, or after all E is in
After sustaining motion, J may enter FULL OR PARTIAL S/J
79
Jury Selection (number of jurors when amount greater/less than $25k)
Less than $25k --> jury of 5 req'd
Greater than $25k --> 7
If parties agree, jury of 3 may be used
80
Challenges to Jurors (Peremptory Challenges vs. For Cause/For Favor)
Each side allowed 3 peremptory challenges on race and gender neutral grounds
No limit for cause/favor
81
Striking Jurors FOR CAUSE - Reasons
1. RELATED TO A PARTY
2. has ANY INTEREST IN THE CASE being tried
3. has expressed OPINION OR BIAS in the matter
82
Demurrer Requirements
1. Must be filed IN WRITING
2. W/I 21 DAYS of service (unless trial court J grants leave for add'l time to file)
3. Must state SPECIFIC GROUNDS (not merely failure to plead a CoA).
4. Tr J may only look to the FACE OF P's PLEADING in ruling on demurrer.
83
What types of cases does Gen'l District Court have Jurisdiction over (dollar amount)?
Have exclusive SMJ for claims up to $4500 (NOT INCLUDING ATTY'S FEES or INTEREST demanded)
84
How should actions be brought for minors (under 18)?
Should be brought by "next friend" --> i.e. parents
85
What is a Misnomer?
Mistake in name (not person)
86
What is a Misjoinder?
Mistake as to the correct party
87
What is INTERPLEADER?
A way for a HOLDER of property to initiate a suit between two or more claimants to the property.
If, for example, A holds property that he knows he does not own, but that both B and C are claiming, A can sue both B and C in an interpleader action, where B and C could litigate who actually owns the property.
88
Is an appeal of a ruling on demurrer a ruling of law or fact?
Ruling of LAW (thus, appellate court applies DE NOVO)
89
Is a ruling on a demurrer appealable?
Only if SUSTAINED (b/c that would constitute a FINAL ORDER)
90
When should a MOTION TO STRIKE THE EVIDENCE be granted?
When (1) NONMOVING PARTY has been FULLY HEARD
2. there are NO DISPUTE OF MATERIAL FACT, and
3. a RSN JURY WOULD NOT FIND FOR NONMOVING PARTY
91
STATUTES OF LIMITATIONS - 2 Years
Personal Injury
Fraud
Wrongful Death
92
S/L - 1 Year
Defamation
93
S/L - 3 Years
Unwritten K's
Right of Contribution Among Tortfeasors
94
S/L - 4 Years
Claims for Sale of Goods Under UCC
95
S/L - 5 Years
Injury to Property
Written K's
96
What are the exceptions to the gen'l rule that defamation claims COA accrues on the date the statement is made?
1. ANONYMOUS PUBLICATION
| 2. Published under FALSE IDENTITY ON THE INTERNET
97
What happens if a party files their appeal in the wrong court (i.e., they should've filed in Court of Appeals but filed in Supreme Court instead)?
Appellate court will transfer to proper court. NOT FATAL.
98
When will issues raised on appeal for the first time be considered by the appellate court?
Only when the ENDS OF JUSTICE exception applies.
99
Requirements for TEMPORARY INJUNCTION
1. Would injunction PRESERVE STATUS QUO and avoid IRREPARABLE HARM?
2. ADEQUATE REMEDY AT LAW?
3. LIKELIHOOD OF SUCCESS on the merits
4. BALANCING OF EQUITIES
100
What must plaintiff do if the court grants request for temporary injunction?
Pay bond in sufficient amount to assure that if defendant wins, they can recover whatever DAM & costs suffered due to the temp injx.
101
What is PRIVATE NUISANCE?
Where neighbor's action unreasonably interferes w/ the use and enjoyment of another's land in a way unique to the planitiff.
102
What is UNCLEAN HANDS doctrine?
Party seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct.
103
When will choice of law provisions in a K for the sale of goods be enforceable?
When the transaction bears RSN R'SHIP to the STATE CHOSEN.
104
Can RFAs based on responses provided in a deposition be used in a MSJ?
Yes, as long as they don't reference the deposition and don't require the deponent to admit/deny he gave certain testimony in the deposition.
105
Must jury verdicts be unanimous?
YES
106
Does mere fact of a conversation w/ a juror mandate new trial?
No, judge should determine what was said and if it effected the deliberations.
107
What is the standard for deciding whether a jury verdict is excessive?
Whether it SHOCKS THE CONSCIENCE OF THE COURT.
If it does, the judge can put the plaintiff on terms to accept a REDUCED J'MENT or judge will ORDER NEW TRIAL
108
What does a choice of law provision in a K mean?
That the SUBSTANTIVE portions of the K will be construed under that state's law.
109
Is S/L considered substantive or procedural for choice-of law?
PROCEDURAL
110
On a BREACH of K case, when there's a choice of law provision, what will court consider re S/L?
Shorter of 1. VA S/L, or 2. Chosen State's S/L.
111
At what point is citizenship adjudged for SMJ purposes?
When complaint is filed.
112
When may a circuit court vacate an arbitrator's award?
1. Award procured by fraud, corruption, undue means
2. Evident partiality by arbitrator
3. Arbitrator exceeded powers
4. Arbitrator refused to postpone hearing for sufficient cause shown
113
How can a party collect an award from arbitration?
1. Apply to have the award CONFIRMED in court
| 2. After confirmed, court enters JUDGMENT
114
What is an action at DETINUE? What must be shown for pretrial seizure?
Object is to RECOVER SPECIFIC PERSONAL PROPERTY (or if not available, its value) unlawfully w/h from P.
May be brought for PRETRIAL SEIZURE.
Must plead:
1. Kind, quantity and estimated value of property
2. Basis of P's claim that will give D RSN notice of the claims and particulars
3. allege GROUNDS FOR ATTACHMENT by stating facts (not conclusions) from which jud'l officer can conclude RSN cause exists
4. Petition must be SWORN to by P or his agent
BOND for 2x value of property
115
Detinue elements
1. P has CURRENT PROPERTY RIGHT in the property
2. P must have right to IMMEDIATE POSSESSION
3. Property must be CAPABLE OF POSS'N
4. Property must have SOME VALUE
5. D must have had poss'n of property prior to suit
116
Who should be named as parties in action for DETINUE?
Person in possession of property
Anyone else claiming an interest
117
Is contributory N an affirmative defense?
Yes. Thus, it's waived if not pleaded.
118
Which jurisdiction laws govern a K signed in another state when the parties were residents of VA?
The laws of the state WHERE THE K WAS EXECUTED, unless that state's laws are against VA PUBLIC POLICY.
119
Are parties entitled to jury trials in EQUITABLE CLAIMS?
No
