VA Civ Pro

Question 1

What is a demurrer? Standard

Answer 1

• Argues that P’s allegations fail to state a claim upon which relief can be granted.
• whether, taking the facts in the complaint as true and in the light most favorable to the non-movant, a cause of action has been stated.

Question 2

Procedure for a demurrer?

Answer 2

A demurrer, in the circuit court, must be filed in writing, within 21 days of service of process unless the trial judge grants leave for additional time within which to file it. The demurrer must state the specific grounds (not merely failure to plead a cause of action), and the trial judge may look only to the face of the plaintiff’s pleading in ruling on the demurrer.

Question 3

What is the standard of review on appeal from demurrer?

Answer 3

• It does depend. If the ruling was on a question of law, then de novo, but questions of fact with high deference.

Question 4

What is a Plea in Bar?

Answer 4

It is used when the D has a complete defense to one of P’s claims. Allows the D to put on evidence of an affirmative defense.

Question 5

What does de novo mean?

Answer 5

• Without deference to the ruling of the court below.

Question 6

Who must sign a pleading? Can a Virginia attorney authorize an out-of-state attorney to sign on their behalf?

Answer 6

Va. Code §8.01-271.1 & Rule 1:4(c) A pleading must be signed by either a pro se litigant or by at least one attorney of record in his individual name. Rule 1A:4(2) provides that any pleading shall be invalid unless it is signed by local counsel. Based on these rules, the Virginia S.C. held that a Virginia attorney may NOT authorize an out-of-state attorney to sign on their behalf.

Question 7

If a pleading that is required to be signed by an attorney licensed to practice law in Virginia does not contain such signature, what should happen?

Answer 7

The court should dismiss the case because the pleading is a nullity. It is as if the pleading never existed, so consequently, for example, the complaint cannot be amended to add the signature.

Question 8

What is the statute of limitations for personal injury claims?

Answer 8

2Y

Question 9

What is the scope of discovery?

Answer 9

• Rule 4:1 permits discovery of any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether the subject matter relates to a claim or a defense
• As long as the requested discovery is reasonably calculated to lead to the discovery of admissible evidence, an objection on the ground that the information sought is inadmissible should be overruled

Question 10

Can the right to arbitration be waived?

Answer 10

• Yes, in the case in which this was asked, the example answer said the P should argue that D waived arbitration by continuing to engage in substantial litigation for an extended period of time in the forum after filing an answer.

Question 11

Should arbitration be compelled if it lists venue in an irrelevant place? what can a plaintiff argue?

Answer 11

• A party can argue that neither party nor the controversy have a connection to the forum, and to force the cost and expense of a dispute In the forum is unfair or unconscionable. Also, if litigation has been ongoing, then the D moves to compel arbitration, then the P could argue that they will be unfairly prejudiced.

Question 12

Motion to Strike Evidence

When must a Motion to Strike Evidence be brought?

Answer 12

Either party can move to strike the evidence after the conclusion of all the evidence.

Most commonly, D will move immediately after P has presented her evidence.

Question 13

Motion to Strike Evidence

What is the standard for ruling on a Motion to Strike Evidence?

Answer 13

Court applies the MSJ standard. Court will consider all the evidence presented in a light most favorable to the non-movant (genuine dispute) and determine whether a reasonably jury could rule in non-movant’s favor (as a matter of law).

Question 14

To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:

• PJ
  
  • Statutory Analysis
    
    • Long-arm statute: Contracts (goods sold out of state)

Answer 14

If D sells a product outside of VA covered by an explicit or implied warranty and the product causes injury in VA, the D will be subject to PJ if:
1. the D could reasonably expect that the product will be used in VA; and
2. the D conducts regular business in VA or derives substantial revenue from VA

Question 15

To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:

• PJ
  
  • Statutory Analysis
    
    • **Long-arm statute: Tort (outside VA)

Answer 15

1. Commit a tortious act (or omission arising to a tortious act) outiside the state,
2. for which the plaintiff’s injury occurs in Virginia, and
3. the defendant:
   
   1. regularly does or solicits business in Virginia, or
   2. (engages in any other persistent course of conduct from which it derives substantial revenue from goods used in Virginia)

Question 16

CC to Court of Appeals: Procedure

When and where must the appellant file the notice of appeal?

Answer 16

within 30 days of the order or final judgment being appealed, and in the circuit court.

Appeal as of right, no need to petition.

Question 17

Court of Appeals to Supreme Court: Grant

An appeal may only be had if…

Answer 17

the Court grants the putative appellant the opportunity to appeal

Question 18

Summary Judgment

Who may file a motion for summary judgment?

Answer 18

Summary Judgment is avaiable for either the plaintiff or defendant when there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law

Question 19

Summary Judgment

What does a motion for summary judgment call for the court to determine? 2 things

Answer 19

1. determine whether there is a genuine dispute as to any material fact, and if not,
2. determine whether the law determines that the movant should win.

Question 20

Summary Judgment

The Court does not weigh evidence, instead it construes the facts….

Answer 20

in the light most favorable to the non-movant

Question 21

Summary Judgment

How is evidence presented to the court on an SJ motion? What do parties typically use?

Answer 21

In documentary form as opposed to live testimony. parties typically use interrogatories, requests for admission, and documents produced during discovery to support/oppose motion for SJ.

Question 22

Summary Judgment

Can either the movant or the non-movant use depositions?

Answer 22

Movants cannot, but non-movants can in opposition.

Question 23

Summary Judgment

What are the three exceptions to the bar on Movants using depostions?

Answer 23

1. The movants contests the availability of punitive damages. (this exception does not apply to a punitive damages claim or demand based on the operation of a motor vehicle by a person while under the influence of alcohol, any narcotic drug, or any other self-administered intoxicant or drug).
2. Claims are between two business entities for $50k or more
3. Parties agree to use depositions

Question 24

Summary Judgment

May the movant use deposition testimony as the basis for facts?

Answer 24

No, unless the parties agree to allow it.

Question 25

Can SMJ be waived in VA?

Answer 25

No, a party may object to subject matter jurisdiction on a claim at any time, even for the first time upon appeal, and the court may raise the issue sua sponte

Question 26

CC to Court of Appeals: Objections

If an issue is not raised by the court or another party, does it need to be objected to be raised on appeal?

Answer 26

Yes, need to object to the issue. Cannot be raised for the first time on appeal (except smj or ends of justice exception).

Question 27

Discovery

Virginia’s discovery rules allow the taking and using the deposition of a treating or examining health care professional to be used at trial, even if

Answer 27

he/she is available for trial

Not permissible in federal court. the professional must be unavailable.

Question 28

Post-Judgment Relief

The court retains the power to ________, ____________, or __________, judgment for ________ days

Answer 28

• reconsider, modify, or vacate judgment
• 21 days

Question 29

Post-Judgment Relief: Relief Sought Within 21 Days

When will a court grant a motion to set aside a default judgment?

Answer 29

• When justice requires within 21 days
• after experations of 21 days, may overturn DF only in limited circumstances.

Question 30

Post-Judgment Relief: Relief Sought Within 21 Days

Motion to set aside judgment will be granted…

Also, how is the motion to set aside judgment in VA different from a federal motion for renewed judgment as a matter of law

Answer 30

only if no reasonable jury could have reached the verdict in question.

Similar to federal renewed judgment as a mater of law, except that movant need not have made a motion to strike evidence at trial.

Question 31

Post-Judgment Relief: Relief Sought Within 21 Days; M. for New Trial

How many basis are there for a Motion for New Trial?

Answer 31

4, though the last one is somewhat limited:
1. misconduct
2. legal error
3. new evidence
4. damages

Question 32

Post-Judgment Relief: Relief Sought Within 21 Days; M. for New Trial

Motion for new trial may be granted due to misconduct of…

Answer 32

parties, judge, juror, witness or some other party that tainted the results

Question 33

Post-Judgment Relief: Motion for New Trial

Motion may be based on ________ error by the ________________

Answer 33

• legal
• court

Question 34

Post-Judgment Relief: Motion for New Trial

Motion may be based on Newly discovered evidence that: (3)

Answer 34

1. was discovered after trial and could not have been reasonably discovered before trial
2. Is not merely cumulative or corroborative; and
3. Is of sufficient power that it would have likely produced and opposite result

Question 35

Post-Judgment Relief: Motion for New Trial

Motion may be based on a damage award that ….

Answer 35

shocks the conscience

Question 36

Post-Judgment Relief: Motion for New Trial

1. What are Remittitur
2. What is additur

These are granted once the court finds that a damage award shocks the conscience in response to a Motion for New trial

Answer 36

1. Reduction of excessive verdict. P may accept new amount or demand new trial
2. Increase of insufficient verdict; D may accept new amount or demand new trial

Question 37

Post-Judgment Relief: Relief Sought Beyond 21 Days

For relief from default judgment D must show…, and when must it be brought?

Answer 37

• fraud on the court; or
• that the judgment is void
• Must be brought within 2 years of the date of judgment

Question 38

Post-Judgment Relief: Relief Sought Beyond 21 Days

If a judgment contains a typographical error, the court can fix this error…

Answer 38

Outside the 21-day post-judgment window

Question 39

Post-Judgment Relief: District Court

When may a new trial be granted after entry of judgment (works for default judgments)?

Answer 39

A new trial may be granted upon a motion made within thirty days after the date of the judgment. The court must rule on the motion within 45 days of the judgment.

Question 40

Post-Judgment Relief: District Court Beyond 30 Days

For relief from default judgment D must show…, and when must it be brought?

Answer 40

• fraud on the court; or
• that the judgment is void
• Must be brought within 2 years of the date of judgment

Question 41

Default Judgment

What’s the Default Judgment Rule?

Answer 41

If D is properly served with process but fails to respond within the allotted time, court will assume that D does not contest the allegations.

Question 42

Default Judgment

What are the consequences of a default judgment? (3)

Answer 42

• D waives his right to jury trial
• D may no longer contest his liability on the merits, but may contest the value of damages
• D is not entitled to any further proceedings in the case. Exception: If D has an attorney, notice must be given to the attorney.

Question 43

Default Judgment Procedure

What is the two-step procedure for obtaining a default judgment

Answer 43

1. Entry of default
2. Entry of default judgment

Question 44

Default Judgment Procedure

What is the Entry of Default?

Answer 44

It is just a clerical record of D’s failure to respond within allotted time.

Entered automatically

Question 45

Default Judgment Procedure

After Entry of Default, what must P do to get a Default Judgment?

Answer 45

P must move for default judgment.

Question 46

Default Judgment Procedure

After entry of default judgment, will the court just award damages as alleged?

Answer 46

Yes, BUT only if they are plain on the face of the complaint. If not, then the court will hold a hearing to set damages. D may participate in the hearing.

Question 47

Escaping Defaults and Default Judgment

What can D do if default has been recorded but there is no judgment yet? What Must D show? What can the court condition?

Answer 47

1. D can file a motion for leave to file a responsive pleading
2. D must show good cause for failing to respond
3. The court can condition its grant of the motion on D accepting responsibility for any costs caused by any the delay

From exam: no judgment. hearing set to determine if judgment should be entered AND to determine damages. D can participate in the hearing for default judgment (and damages), and the court can grant leave to the D in default to file a late responsive pleading and cure the default.

Question 48

Escaping Defaults and Default Judgment

What can a D do if a default judgment has been entered? within what amount of time?

Answer 48

The D should file a motion to set aside the default judgment and the Motion must be made within 21 days of entering the judgment (unless the judgment was fraudulent or without jurisdiction then two years to file).

Question 49

A defendant in default is not entitled to notice of any further proceedings in the case, including notice to take depositions, except…

Answer 49

that written notice of any further proceedings shall be given to counsel of record, if any. The defendant in default is deemed to have waived any right to trial of issues by jury.

Question 50

What can D do if he is present at a default judgement damages hearing? in other words, how can he specifically contest the thing he can contest (5)?

Answer 50

he may not offer proof or argument on the issues of liability, but may

(i) object to the plaintiff’s evidence regarding damages,
(ii) offer evidence regarding the quantum of damages,
(iii) participate in jury selection if a jury will hear the damage inquiry,
(iv) submit proposed jury instructions regarding damages, and
(v) make oral argument on the issues of damages.

Question 51

What does the court consider when deciding to relieve the defendant from the default judgement? (4)

within 21 days

Answer 51

• The extent and causes of the defendant’s delay in tendering a responsive pleading
• whether service of process and actual notice of the claim were timely provided to the defendant,
• the effect of the delay upon the plaintiff, and
• The existence of a substantial defense

Question 52

What are the Two prerequisites for an appeal from GDC to CC? SoR?

Answer 52

1. A final judgment
2. An AIC in excess of $20
3. De novo

Question 53

GDC to CC

When must the losing party appeal? Where is the notice of appeal filed?

Answer 53

1. Within 10 days of the entry of final judgment
2. Notice of appeal is filed in GDC

Question 54

What is an SoL? what do you need to know about it?

Answer 54

A deadline for filing a claim, and an affirmative defense for the D to raise, OR it is WAIVED

It can be WAIVED

Question 55

What are the statute of limitations for:

• Personal injuries and fraud
• Nonphysical personal torts
• Defamation and libel
• Property damage
• Oral K, equitable estoppel, unjust enrichment
• Property damages for sales under UCC
• Written K’s not under UCC
• Wrongful death
• Unlawful detainer

Answer 55

• Personal injuries and fraud - 2 years
• Nonphysical personal torts - 2 years
• Defamation and libel - 1 year
• Property damage - 5 years
• Oral K, equitable estoppel, unjust enrichment - 3 years
• Property damages for sales under UCC - 4 years
• Written contracts (non UCC)
  1. signed by party to be charged: 5Y
  2. Not signed: 3Y
• Wrongful death - 2 years from death
• Unlawful detainer - 3 years from detention

Question 56

Accrual

When does a statute of limitations start to run?

Answer 56

Upon accrual of the cause of action

• The date of injury or breach, regardless of whether the P was aware of it at that time
  
  • Not from date P discovered or should have discovered

for defamation: when the defamantory acts occured, not when resulting damage discovered.

Question 57

Accrual

What exceptions are there to the accrual rule regarding discovery? SoL change?

Answer 57

• Fraud or mistake–SOL stats running when fraud or mistake is discovered or reasonably should have ben discovered, which ever is earlier.
• Certain medical claims–failed diagnosis, faulty medical device.
• In exchange for the more generous discovery rule, the SOL is shortened to 1 year.

the exchange for both exceptions

Question 58

Nonsuit: Key features and rules

What is a nonsuit?

Answer 58

Allows the P to stop litigating a case wihtout forfeiting the chance to relitigate later.

Question 59

Nonsuit: Key features and rules

The first nonsuit is as…

Answer 59

of right

Question 60

Nonsuit: Key features and rules

When can a P file a nonsuit?

Answer 60

1. Before the case is submitted to the factfinder for resolution
2. Before a motion to strike the evidence has been sustained

E.g., before court dismisses counts w/ prejudice based on SoL

Question 61

What is the doctrine of unclean hands?

Answer 61

Under the doctrine of unclean hands, a party seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct, and the wrongful conduct must relate to the claim asserted.

affirmative defense to claim of equitable relief

Question 62

What is the rule regarding legal remedies versus equitable remedies?

Answer 62

An equitable remedy is impermissible when a legal remedy is available.

Question 63

Is specific performance an equitable or a legal remedy?

Answer 63

Equitable

Question 64

What are the elements required for specific performance? (6)

Answer 64

1. the contract at issue is enforceable;
2. all conditions precedent to performance have been satisfied;
3. the contractual terms at issue are sufficiently definite to be enforced by the court;
4. the defendant is able to perform or the performance can be abated (lessened, reduced, or removed);
5. it would be fair (equitable) to specifically enforce the contract;
6. and there is not remedy available at law

Question 65

What is the doctrine of hardship or oppression?

Answer 65

A court of equity will not decree specific performance of the agreement where it would entail great hardship, and the hardship was due, in some measure, at least, to the conduct of the other party.

Question 66

How do you rescind a contract based on Fraud?

Answer 66

To rescind a contract based on fraud, there must be a false statement of facts, positively made, not mere matters of erroneous opinions.

A concealment to afford ground of rescission for fraud must be a willful suppression of such facts in regard to the subject–matter of the contract as the party making it is bound to disclose

Question 67

How does a party intervene in a pending action?

Answer 67

A new party may by leave of court file a pleading to intervene as a plaintiff or defendant to assert any claim or defense germane to the subject matter of the proceeding. Courts have considerable discretion in granting or refusing such a request.

Question 68

What must a party allege to obtain a temporary injunction?

Answer 68

1. They have a legal right in the subject matter;
2. They will suffer irreparable harm without an injunction;
3. The balance of equities weighs in the party’s favor (e.g., the other party will not be permanently harmed by the injunction);
4. Likely to succeed on the merits of their claim;
5. Exigent circumstances support the injunction; and
6. No adequate remedy at law (however–An injunction may be awarded to protect any plaintiff in a suit for specific property, pending either at law or in equity, against injury from the sale, removal, or concealment of such property; important because an action in detinue is available for specific property).

Granting of an injunction is an extraordinary remedy and rests upon the discretion of the court. It will not be awarded unless the court is satisfied of the party’s equity (justice).

Question 69

What must a person prove in order to get a permanent injunction? (4)

Answer 69

(1) That the plaintiff has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are inadequate to compensate for the injury;
(3) that the remedy in equity is warranted upon consideration of the balance of hardships between the plaintiff and defendant; and
(4) that the permanent injunction being sought would not hurt public interest.

Question 70

What is the hiearchy to look for in Venue?

Answer 70

1.Forum Selection Clause 2.Look for category A. 3.Look for category B.

Question 71

What cases fall into Category A venue? (6)

Answer 71

1. Choice of forum
2. Real Property
3. Action against the state
4. Wills
5. Injunctive relief
6. writ actions

Question 72

What may Category B venue be based on? (7)

Answer 72

1. Where D resides or works
2. Where a business D has its PPB
3. Where a business D conducts substantial business, as long as that place is related to P’s case.
4. Where D has registered office/agent
5. Where corp. D CEO resides
6. Where cause of action arose:
   * Contracts=last act that formed the K occured OR where the breach occurred
   * Tort = where the wronfgul acts or harm arose
   * Everything else=analogize to contrcts or torts

Multiple D’s, anywhere that it is lawful for a D to be sued

Question 73

What is process?

Answer 73

(1) a summons, and (2) a copy of the complaint

Question 74

Who may serve process? JX limitation? Payment?

Answer 74

an adult (18) civilian who is not interested in the case or by the sheriff or deputy. An officer may serve in her city or county and in contiguous (being in actual contact) localities. Plaintiff pays the officer’s fee.

Question 75

Natural Person Service

What is the hierarchy of service in VA?

Answer 75

1. Personal (or “actual”) service. 2.Substituted service. 3.Posted service.

Question 76

Natural Person Service

What is personal service?

Answer 76

Actual, physical delivery directly to D. THIS MUST BE TRIED (AND UNAVAILABLE) BEFORE YOU CAN TRY ANY OTHERS.

Question 77

Natural Person Service

How is substituted service performed?

Answer 77

Must be served: -At D’s usual abode -On member of D’s family who is at least 16 years old, and not a guest or temporary sojourner

A family member can be a guest/temp. sojourner

Question 78

Natural Person Service

How is posted service performed? Can this form of process support a default judgment? Can non-residents be served this way?

Answer 78

1. Post a copy of process on the front door of D’s usual place of abode AND mail a copy of process to that same address
2. This method of service cannot support a default judgment unless a copy of service was mailed to the defendant at least 10 days before judgment

Non-residents can be served in the same way, but service may also be made on the secretary of the Commonwealth.

Question 79

How is service performed on Virginia Entities (Corporation, LLC, partnerships, associations, etc.)?

Answer 79

• Service on officer, director, or registered agent
  1. Partnership
• General Partnerships: service can be made on general partner
• Limited Partnership: service can be made on the registered agent
  2. No registered agent? service can be made on any agent of the entity

Question 80

What is “the return” or “proof of service”?

Answer 80

A report to the court by an officer who served process, saying what he did to effect service

Why? court needs this so it can set deadlines for D’s response

Question 81

Can a civilian make the proof of service report?

Answer 81

A civilian can do this too, but it is prima facie evidence of service if an officer does it, not so with a civilian.

Question 82

How may a foreign corporation registered in the commonwealth be served?

Answer 82

process may be served on “any officer, director, or registered agent of the foreign corporation.”

Question 83

When can improper service be effective?

Answer 83

When defendants received the summons and complaint (the process) in a timely manner (within one year of filing the lawsuit). (Note that forgiveness of improper service does not pertain to cases of divorce and annulment of marriage).

Question 84

What is the SoL for a personal injury case?

Answer 84

2Y

Question 85

When must a defendant object to venue and what must they provide with their objection?

Answer 85

A defendant must object to this venue within 21 days (or within the period of extension of time for filing responsive pleadings). A defendant must also set forth where he believes venue to be proper.

Question 86

If D believes they are an improper D, what should they file? What happens thereafter?

Answer 86

A plea of misjoinder; the D will be dismissed.

Question 87

Escaping Defaults and Default Judgment

What can D do if default has been recorded but there is no judgment yet? What Must D show? What can the court condition? Amount of discretion?
.

Answer 87

1. D can file a motion for leave to file a responsive pleading
2. D must show good cause for failing to respond
3. The court can condition its grant of the motion on D accepting responsibility for any costs caused by any the delay

Factors the court may take into consideration include the extent and reason for the delay and prejudice to the other party caused by the delay

Court has broad discretion is permitting leave to file

Question 88

If D has default judgment against them, and P found contributorily negligent, what result?

Answer 88

A Defendant in default may not contest liability on the merits, and contributory negligence is an affirmative defense so it is waived if not asserted. Therefore, the defendant (most likely) cannot bring up contributory negligence when contesting damages.

However, under Rule 3:19(c)(1), the court shall enter judgment “for the relief appearing to the court to be due.” May be able to argue that the P is not due anything if she was contributorily negligent

Question 89

What is an action for detinue and what must be proven to prevail?

Answer 89

o An action to recover personal property or its value
o (1) the plaintiff has a current right in the property; (2) the plaintiff has a right to immediate possession; (3) the property is capable of possession; (4) the property has value; and (5) the defendant had possession of the property prior to filing suit.

Question 90

What two legal actions could a holder of property assert to avoid being sued by conflicting parties with potential interests in the property? Which is the best? Explain them both

Answer 90

• Interpleader (best): “Whenever any person is or may be exposed to multiple liability through the existence of claims by others to the same property or fund held by him or on his behalf, such person may file a pleading and require such parties to interplead their claims.” And the court may enter an order restraining all claimants from instituting or prosecuting any proceeding in any court in the Commonwealth affecting the property involved in the interpleader action until further order by the court.
• Declaratory judgment: (1) seeks a judicial declaration of a right. (2) requires an actual controversy over the rights in question, and (3) only available when no other form of action is available.

Question 91

When can the defense of laches be used?

Answer 91

• They are available only against equitable actions where there is no applicable SoL

Question 92

To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:

• PJ
  
  • Statutory Analysis
    
    • Long-arm statute: Contracts (goods sold in state)

Answer 92

If D conducts business in VA, or sells goods or services into the state, Court will have PJ so long as claim(s) arises from D’s contacts w/ the state.

have even just one business contact in Virginia. So if the defendant signs a contract in Virginia, he is subject to PJ.

(this is called a “single transaction” state)

a key distinction: sold outside of state means literally sold outside of state, not into.

Acting through an agent is sufficient (e.g., NY buyer acting through salesperson from delaware company that sells in Virginia to VA P)

Question 93

To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:

• PJ
  
  • Statutory Analysis
    
    • **Long-arm statute: Tort (inside VA)

Answer 93

D acts in VA and causes injury in VA. PJ over that claim.

Question 94

To satisfy the Virginia long-arm statute, the claim must arise when the defendant does one of the following things in Virginia:

• PJ
  
  • Statutory Analysis
    
    • **Long-arm statute: Tort (outside VA)

Answer 94

1. Commit a tortious act (or omission arising to a tortious act) outiside the state,
2. for which the plaintiff’s injury occurs in Virginia, and
3. the defendant:
   
   1. regularly does or solicits business in Virginia, or
   2. (engages in any other persistent course of conduct from which it derives substantial revenue from goods used in Virginia)

Question 95

Virginia’s

• PJ
  
  • Statutory Analysis
    • Long-arm statute: Property-based contacts

Answer 95

1. Has to be land, i.e. real property
2. The nonresident defendant need not own the land, he just has to use it, possess it, or have an interest in it.
   
   1. WATCH OUT FOR THIS!

“Having an interest in, using, or possessing real property in this Commonwealth”

Question 96

• PJ
  
  • Statutory Analysis

Long-arm statute: Family-based contacts**

Answer 96

1. Divorce: if the matrimonial domicile was in VA, VA has PJ to adjudicate a divorce
2. Support action: if a D is obligated to pay support (spousal or child) to a VA resident, VA has PJ to enforce the obligation

Question 97

The main exception to Circuit Court jurisdiction is…

Answer 97

actions for monetary claims or claims to specific personal property of $4,500 or less.

Question 98

Claims $4,500 or less (may/must) go to the District Court?

Answer 98

Must

Question 99

SMJ of District Courts is statutory and for causes of action under _____?

Answer 99

Law

Question 100

District Courts may hear interpleader cases if the real or personal property is worth….

Answer 100

$25,000 or less. But, no injunction to stop litigation in other courts.

Question 101

GDC can hear interpleader in any amount (even over $25,000) in what type of dispute?

Answer 101

Earnest money deposit in a land sale contract

Question 102

Is there a right to a jury in GDC?

Answer 102

No, there is not even a statutory authority for jury in GDC. Only Circuit courts are authorized to conduct jury trials

Question 103

Order of analysis for PJ?

Answer 103

1. VA Long arm statute
2. Due process

Question 104

What is the PJ analysis under the DPC?

Answer 104

Has the D purposely availed itself of the laws of the Commonwealth such that D being subjected to the court’s jurisdiction would not offend traditional notions of fair play and substantial justice.

minimum contacts

Question 105

Specific personal jurisdiction test?

Answer 105

Does the claim arise out of the defendant’s contacts with the state?

Question 106

PJ under long-arm statute for tortious injury occurring in state by act done out of state?

Answer 106

Non-resident must regularly conduct or solicit business from the Commonwealth, or engage in any other persistent course of conduct, or derives substantial revenue from goods use or consumed or services rendered in the commonwealth.

Question 107

Where is venue appropriate in a contract action?

Answer 107

Where executed or where the breach occurred

Question 108

When can an improper venue retain a case?

Answer 108

D fails to object or the parties agree to stay there. Court must transfer if D objects.

Question 109

Procedure for objecting to venue? Should you file a motion to dismiss based on improper venue?

Answer 109

Venue is not a jurisdictional issue in VA, so a motion to dismiss is improper. No case shall be dismissed on that basis. A defendant must file an objection to venue within 21 days of service of process or it is waived. The objection should state where venue is proper. The court will transfer the case to proper venue if correct.

Question 110

What is forum non-conveniens? When is it available?

Answer 110

A dismissal, not a transfer. Available when (1) an alternative forum is much more convenient, (2) plaintiff is a non-resident; (3) the claim arose outside the commonwealth; and (4) the alternative forum will have PJ over all Defendants

The traveling Virginian tortfeasor

Question 111

How should a minor sue? Be sued?

Answer 111

By a next friend complaint. “Patty lane, a minor, who sues by her next friend, Lucy Lane.”

Minor can be sued directly, but court must make sure they have an attorney.

Question 112

What do you need to do to add a new claim? What will the court consider in granting it?

Answer 112

File leave to amend promptly after learning of the reason to amend. Leave to amend should be granted (never as of right in VA) liberally in furtherance of the ends of justice. The court will consider the movant’s (1) bad faith, (2) prejudice to the non-movant, (3) futility—inquiry into the merits of the amendment.

Question 113

Difference between misjoinder and a misnomer? Effect?

Answer 113

Misjoinder is a mistake in what party to sue. Misnomer is a mistake in the name of the party you are suing. There is no SoL problem with a misnomer, the plaintiff can just move to amend the pleading.

Question 114

To add a new party or replace a party after the SoL has expired, three factors must be satisfied:

Answer 114

1. The claim in the amended pleading must arise out of the conduct, transaction, or occurrence set forth in the original pleading.
2. The new party must have had actual notice (known or should have known) of the suit within the time that the original defendant had to be served with process (i.e., SoL + 1 year)
3. The new party expected to be sued but was not due to mistaken identity

Question 115

How many claims can any claimant (P or counter-P) bring?

Answer 115

A particular claimant may bring any other claim that they want, regardless of whether the claims are related

Question 116

Do counterclaims need to be related to P’s underlying claim?

Answer 116

No

Question 117

Does Virginia have a compulsory counterclaim rule? Explain, more than just yes or no

Answer 117

No. However, suing down the road may be a bad idea because of res judicata. D might have to live with the ruling in the initial case.

Question 118

Do cross claims need to be related?

Answer 118

Yes, they must be related to the same transaction or occurrence underlying ONE of the claims in the ORIGINAL action.

Question 119

What is impleader?

Answer 119

Where a claim brought by D (third-party plaintiff) against another party not yet in the lawsuit (also called the third-party D). Must allege that the third-party D is responsible for all or part of original D’s liability

Question 120

Will a counterclaim that arises out of the same transaction/occurrence as a complaint claim relate back for purposes of SoL? What about one that does not?

Answer 120

1. Yes
2. No

Question 121

Timing issues and SoL: is the day that the action accrues counted for accrual of SoL? Weekends? Holidays?

Answer 121

No, and you cannot file on weekends or holidays so you will be given until the next workday if the last day to file lands on a weekend or holiday.

Question 122

How many days does a D have to respond to the complaint when they have been properly served with the summons and complaint? Waiver?

Answer 122

21, but a D may waive service or make a general appearance by filing a responsive pleading and relieve the P of the burden to serve process. 60 days with waiver or 90 days if out-of-state resident.

Question 123

Proof of service must be filed within how many hours of service?

Answer 123

72 hours

Question 124

What is the curing statute?

Answer 124

even if process was improper, if D actually (i.e., process reached the person) and timely (i.e., before D would be in default) receives proper process (summons and complaint), it is okay

Question 125

What cases does the curing statute not apply to?

Answer 125

Divorce and annulment

Question 126

Good process, but bad service?

Answer 126

If D actually receives process within 1 year of filing the complaint, service will be sufficient even if the rules were technically broken. The process server must have acted in good faith.

Question 127

What is waiver of service of process? what happens when P requests waiver?

Answer 127

Where the D agrees to acknowledge the lawsuit without formal service of process

P can send the D a request for waiver. D is obligated to minimize the cost of service and accept the request for waiver, and if he fails to accept, he is responsible for the cost of service.

Question 128

Is a plea of SoL a responsive pleading? implications?

Answer 128

Yes, it should be brought within the 21 days of service because it is also an affirmative defense. SoL does not need to be raised in an answer but it must be raised in the first responsive pleading like all affirmative defenses.

Question 129

Can SoL as affirmative defense be raised by demurrer?

Answer 129

No

Question 130

What is the form of action you should file to initiate the pre-trial recovery of personal property that you have an ownership interest in?

Answer 130

Petition for pre-trial seizure in detinue

Question 131

What must you plead to properly petition for pre-trial seizure in detinue?

Answer 131

1. The kind, quantity, and estimated fair value of the specific property being sought
2. Describe the basis of plaintiff’s claim with such certainty that will give the adverse party reasonable notice of the true nature of the claim and particulars;
3. Allege one of the prescribed statutory grounds for attachment (e.g., D is a foreign corp. or non-resident; intends to hide the property) by stating facts, not conclusion, from which the judicial officer can conclude there’s reasonable cause to believe the grounds exist.
4. The petition must be sworn to by the plaintiff or his agent

Question 132

What additional requirement is there for a pre-trial action in detinue?

Answer 132

P must furnish a bond payable to the D in an amount equal to at least twice the value of the property being sought on the condition of re-delivery of the property to the D if the P loses. P must pay proper costs, fees, and taxes.

Question 133

Who should be named in a detinue action?

Answer 133

The person in possession along with any other persons claiming the property.

Question 134

Is a Demurrer the proper motion to make when a complaint is filed by an improper party?

Answer 134

Yes, it should be used to challenge the legal sufficiency of a complaint, counterclaim, crossclaim or third-party claim.

Question 135

Who must sue on an action for wrongful death?

Answer 135

The suit should be file in the name of the personal representative of the estate. Filing in the name of the deceased is a legal nullity, so any attempt to amend or substitute the proper party should be denied.

Question 136

When must the first non-suit be brought?

Answer 136

Before a motion to strike has been sustained or before the jury retires

Question 137

When does a counter claim make it impermissible to nonsuit?

Answer 137

When it arises out of the same transaction or occurrence as the claim of the party seeking nonsuit. In other words, the rule does not apply if the counterclaim can remain pending for independent adjudication by the court

Question 138

Does a continuance affect the initial right to nonsuit?

Answer 138

No

Question 139

Subsequent nonsuits require what? and what may the court award the opposing parties?

Answer 139

1. Leave of court
2. fees and costs

Question 140

What venue must a refiling nonsuiter file in?

Answer 140

The same venue as the original suit to prevent judge shopping, BUT can refile in federal court

Question 141

When must P refile after a nonsuit?

Answer 141

Either within 6 months of nonsuit OR the within the remainder of SOL, whichever is longer.

Question 142

Can Admissions made as part of a reply to discovery be admissible even if they are based in whole or in part on discovery depositions?

Answer 142

Yes, And they may include facts learned in the deposition, so long as they do not directly reference the deposition or require the deponent to admit that he or she gave specific testimony at the deposition.

Practically, you do the deposition and then you send Requests for Admission based on that testimony, then use the admissions for SMJ.

Question 143

What two responses should a defendant make after 1 year of no/improper service at a hearing on motion for default judgment?

Answer 143

1. Make a special appearance moving to dismiss the motion based on the fact that the court lacks JX over the D b/c of lack of service.
2. Move to dismiss the action with prejudice because the P failed to serve the D within a year of filing and failed to exercise diligence in serving D

Question 144

Can a judge enter a final order and hear a motion for reconsideration that day (within 21 days) but wait more than 21 days to enter a new order?

Answer 144

No, the judge only has jurisdiction for 21 days to modify, reconsider or vacate the judgment.

Question 145

Can a court proceed with a damages hearing upon a default judgment if it does not have jurisdiction?

Answer 145

No. There was a question the ordered the Qs weird and the first two Qs assumed there is jurisdiction.

Question 146

When D is in default (default order entered), counsel of record must receive notice of further proceedings until when?

Answer 146

Default judgment is entered.

Question 147

Must a motion for new trial based on a non-unanimous jury verdict be granted?

Answer 147

Yes. Jury verdicts must be unanimous

Question 148

Must a motion for new trial based on a party’s relative conversing with a juror be granted?

Answer 148

It is discretionary. The court should examine how the conversation affected the deliberations and grant it if the other party was prejudiced.

Question 149

What two options does a judge have after granting a motion for new trial based on the fact that the verdict was excessive and shocks the conscience?

Answer 149

(1) Put the plaintiff on terms to accept a reduced judgment or (2) the judge can order a new trial.

Question 150

Can a new trial be ordered just for the issue of damages?

Answer 150

Yes, a motion granted on that ground can lead to an order for new trial on all issues or just damages. It’s discretionary. The court should consider the reason for such an excessive verdict.

Question 151

To appeal a judgment from a Virginia Circuit Court, a party must file a notice of appeal in the Circuit Court and then:

Answer 151

File an Appeal Brief in the VA Court of Appeals

Question 152

Is filing an appeal in the wrong court fatal?

Answer 152

No the Supreme Court will just transfer it to the Appellate Court

Question 153

What must you do to preserve an issue for appeal?

Answer 153

The error in the trial court must be specifically and timely objected to at the time of the error. Only have to make the objection once.

Question 154

A party must object to the decision in the lower court to appeal the decision. If the appellant failed to object, the court of appeals will only consider the appellant’s argument under what exception?

Answer 154

The “ends of justice” exception. BUT, this is only applied in extreme circumstances to correct a grave injustice. Really only applied in criminal cases where someone’s life hangs in the balance and there was an egregious error at the trial level that was not preserved.

on exam, mention the exception, but say unlikely to be applied in a civil case.

Question 155

GDC to CC Appeal: If the D is the Appellant, the P may increase…

Answer 155

Her ad damnum clause. Also, she may seem an amount in excess of the dollar jurisdictional limit of GDC.

Question 156

When signing a pleading, what assurances does counsel make? (3) And if the plaintiff is lying?

Answer 156

1. He read the pleading
2. To the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and
3. It is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading, motion or other paper is signed in violation of the requirement to make these assertions, the court upon motion or sua sponte may issue sanctions, which may include an order to pay other party or parties reasonable expenses, including reasonable attorney’s fees

Question 157

May a court issue sanctions for repeated frivolous motions?

Answer 157

Yes, and they can do it sua sponte

Question 158

Before filing a suit, what must an attorney do?

Answer 158

Be diligent in investigating the fact and determining whether a suit is warranted. See the assurances.

Question 159

Can a court impose sanctions after granting a non-suit but suspending it upon further order of the court?

Answer 159

Yes, this will properly keep the issue of sanctions within the court’s jurisdiction.

Question 160

If a party fails to comply with a discovery request, what can the discovering party do?

Answer 160

Move to compel discovery. And this must happen before sanctions are sought.

Question 161

Does a court have the authority to hold a lawyer in contempt?

Answer 161

Yes, for example for misbehavior in the presence of the court or vile, insulting language in the presence of the court

Question 162

May a court bar an attorney from practicing in their circuit court?

Answer 162

Yes, for egregious conduct

Question 163

May a court report a lawyer’s conduct to the VA state bar?

Answer 163

Yes, as can anyone, but also, the Canon for Judicial conduct says that when the court has knowledge that a lawyer has committed a violation of the Code of Professional Responsibility that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects should inform the Virginia State Bar”

treat as a mandate

Question 164

What happens when a party refuses to submit to arbitration pursuant to a mandatory arbitration provision in a K?

Answer 164

either party, on the other parties refusal to arbitrate, may make application to the court and the court shall order the parties to proceed with arbitration

Question 165

Upon what grounds must a court vacate an arbitrator’s award?

Answer 165

1. The award was procured by fraud
2. The arbitrator was evidently biased or corrupt
3. The arbitrator exceeded their powers
4. The arbitrator refused to postpone the hearing after good cause was shown, and a party’s rights were prejudiced.

Disagreeing with the result and mere error of fact or law are not grounds for vacating an award.

Question 166

What must a party do to enforce an arbitration award?

Answer 166

Make application to the court to confirm the award and to enter judgment in conformity with the award.

Question 167

When do the statute of limitations begin to run? Exceptions?

Answer 167

Upon accrual of the CoA. Fraud and certain medical claims; the SoL will being to run when the issue is discovered or when it should have been discovered by due diligence.

Question 168

What tolls the running of the statute of limitations?

Answer 168

Filing suit against the correct party, not service

Question 169

Will dismissal of a suit w/o prejudice start the clock again?

Answer 169

Yes

Question 170

How long does a minor have to sue in an ordinary case?

Answer 170

The length of the SoL, but it does not start to run until the minor is 18 or emancipated.

Question 171

How long does a minor have to sue in a medical malpractice case?

Answer 171

2Y, unless younger than 8. Once 8, have until you are 10.

Question 172

What is the SoL for a written contract?

Answer 172

5Y

Question 173

When is laches defense available?

Answer 173

When there is not a specific SoL for the claim. It also requires the plaintiff to have (1) knowledge of rights; (2) significant delay, (3) prejudice to the D.

Question 174

SoL for a fraud claim?

Answer 174

2Y, only accrues when the plaintiff becomes aware or should have become aware of the fraud.

Question 175

Do all defenses need to be raised in the first responsive pleading or face waiver?

Answer 175

No, just affirmative defenses.

Question 176

If a non-affirmative defense is raised super late in the game, what should the plaintiff argue? Will it be effective?

Answer 176

They are prejudiced by it being raised because they did not have the opportunity to conduct discovery. It won’t be effective. The Court should permit the defense so long as the evidence supports its proffer to the fact finder.

Question 177

If the D does something to keep the plaintiff from filing suit, the SOL will be tolled. Obstruction occurs when: (3)

Answer 177

1. D files for bankruptcy
2. hides the injury
3. takes curative actions

Question 178

SoL for wrongful death?

Answer 178

2Y from the death.

Question 179

Are SoL substantive or procedural in VA?

Answer 179

Procedural

Question 180

If the foreign forum that the CoL clause chooses has a shorter SoL than the forum (VA), whose SoL will VA apply?

Answer 180

the shorter of the two

Question 181

When is a CoL clause enforceable?

Answer 181

When the state’s whose law is selected to govern the substantive provision of the K is reasonably related to the purpose of the agreement.

Question 182

Should a court excuse a prospective juror if they are related to one of the parties (state the rule)? Does peremptorily striking that person render the error harmless?

Answer 182

Yes, jurors that are related to a party, have an interest in the outcome, express or form an opinion as to the case, or are biased or prejudiced must be struck for cause. Peremptory strike will not cure or render the error harmless.

Question 183

Should a court excuse a prospective juror who is a business partner of one of the parties and knows facts about the case?

Answer 183

The choice is discretionary so it will be overturned if an abuse. It’s a close call, but striking them should be permitted based on the person maybe forming an opinion or being biased.

Question 184

What is declaratory judgment and what does it require?

Answer 184

(1) seeks a judicial declaration of a right. (2) requires an actual controversy over the rights in question, and (3) only available when no other form of action is available.

Question 185

What is Unlawful Detainer and what does it require?

Answer 185

An action that is used to seek a court order for the D to surrender possession of real estate. Action at law. It is used typically when (1) a defendant unlawfully gained possession or (2) where the D had lawful possession but lost that right (e.g., not paying rent).

Question 186

What is Bill to quiet title and what does it require?

Answer 186

An equitable proceeding that asks the court to exercise is equitable powers to determine title to land. Not appropriate when a is a remedy at law.

Question 187

What is Ejectment and what does it require?

Answer 187

Ejectment addresses issues of possession and title. It is an action at law. Possession of part is construed as possession of whole. The movant must recover on the strength of her own title, not the lack of title in the defendant. Active possession is not required.

Question 188

Key difference between ejectment and Bill to quiet title?

Answer 188

They both inferentially determine possession, ejectment is an action at law though. I guess you would only use Bill to quiet title where the right to possession is not an issue? Idk. Google says that a person can only bring an ejectment action if they have a subsisting interest in the premises and a right to recover the possession of the premises.

Question 189

Can the defense of SoF be asserted regarding the return of engagement ring?

Answer 189

Defendant is estopped form arguing that the K is in writing if she accepted the gift.

Question 190

What must a party allege to obtain a temporary injunction?

Answer 190

1. They have a legal right in the subject matter;
2. They will suffer irreparable harm without an injunction;
3. The balance of equities weighs in the party’s favor (e.g., the other party will not be permanently harmed by the injunction);
4. Likely to succeed on the merits of their claim;
5. Exigent circumstances support the injunction; and
6. No adequate remedy at law (however–An injunction may be awarded to protect any plaintiff in a suit for specific property, pending either at law or in equity, against injury from the sale, removal, or concealment of such property; important because an action in detinue is available for specific property).

Granting of an injunction is an extraordinary remedy and rests upon the discretion of the court. It will not be awarded unless the court is satisfied of the party’s equity (justice).

Question 191

If a temporary injunction is granted, what further requirement is the movant supposed to fulfill before relief is effective and why?

Answer 191

They must furnish a bond in sufficient amount to assure that if ultimately the other party wins, there will be assurance that they can recover whatever damage or costs are incurred by the implementation of the injunction.

Question 192

How can an injunction or the lack thereof affect damages?

Answer 192

The implementation of an injunction could reduce the level of damages or prevent completely, and vice versa.

Question 193

General rule for grant of attorneys fees?

Answer 193

In the absence of a statute or contract to the contrary, a court may not award attorney’s fees.

Question 194

What is a significant exception to the general rule regarding attorney’s fees?

Answer 194

A judge in the exercise of his discretion may award them to a defrauded party.

Question 195

Explain the statutory scheme for who is entitled to recover under an action for wrongful death:

recover, not sue

Answer 195

Virginia Code Section 8.01-53 sets forth the statutory beneficiaries who are entitled to recover for the wrongful death of another. This section defines four classes of beneficiaries which are successive in nature, meaning that no member of a class is entitled to compensation if a member of any of the preceding classes is alive.

Question 196

wrongful death: statutory order of beneficiaries?

Answer 196

1. surviving spouse, descendants, and parents if they provided regular support 12 months prior to death
2. If no suriving spouse/descendants, then to parents, siblings (including half siblings), and any other relative who is primarily dependent on the decedent and a member of the same household

Question 197

Can a motion to amend a pleading be made orally?

Answer 197

Yes

Question 198

SoL for breach of UCC K?

Answer 198

4 years

Question 199

What is a bill of review? when may it be brought?

Answer 199

Is it a bill asking the court to vacte or modify a final order in an equitable proceeding. within 6 months of the final order unless the party bringing it was under disability.