va civ pro Flashcards
A plaintiff has the right to take a first nonsuit at any time before
(i) a motion to strike the evidence has been sustained,
(ii) the jury retires from the bar to decide the case, or
(iii) the action has been submitted to the court for decision.
a judge, in imposing sanctions, has the power to
strike the evidence.
Under the Virginia Supreme Court rules (Rule 4:12), the court may impose sanctions for a party’s failure to
comply with a discovery order.
When the party has failed to attend his own deposition, serve answers to interrogatories, or respond to a request for production or inspection, the court may impose certain sanctions, including
striking the pleadings but not contempt, without the prior entry of an order to compel these discovery actions.
Virginia’s sanction statute (Va. Code Ann. 8.01-271.1) grants a court the authority to
impose appropriate sanctions on any violation of this statute’s requirements whether the violation is brought to the court’s attention through a motion or the court acts on its own initiative.
Virginia’s sanction statute provides that the attorney who represents a party (or a party who is proceeding pro se), by filing a pleading or making a motion, whether in writing or orally, certifies that:
i) He has read the pleading, motion, or other paper;
ii) To the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and
iii) 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.
The Virginia Sanction Statute gives the court the authority to award
reasonable attorney’s fees and costs as sanctions, and require the sanctioned attorney to pay them.
Among the limited situations in which the courts and judges may issue attachments for contempt, and punish summarily is when
vile, contemptuous, or insulting language addressed to or published of a judge in respect of any act or proceeding had, or to be had, in such court.
Among the sanctions that the court may impose for violation of the Virginia sanction statute is
prohibiting the attorney from practicing before it.
The Canons of Judicial Conduct mandate that a judge should inform the Virginia State Bar when the judge has knowledge that a lawyer has
committed misconduct that raises a “substantial question” about the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
A notice of appeal must be filed within
30 days after entry of the final order
the 30 day notice of appeal filing period is not interrupted by
the filing of a motion for a new trial or a motion to vacate.
Generally, in any civil action, there is no appeal as of right to
the Virginia Supreme Court.
An appeal to the Virginia Supreme Court is by
petition and therefore subject to the discretion of the Virginia Supreme Court.
negligence action is appealable to the Virginia Supreme Court only by
petition
Any party may move for summary judgment: when?
at any time after the parties are at issue (i.e., after responsive pleadings have been filed).
At the conclusion of the plaintiff’s presentation of evidence at trial, a defendant may move to
strike the evidence presented by the plaintiff.
At the conclusion of the presentation of evidence by all parties, who may move to strike the evidence?
any party may move to strike the evidence presented by another party.
In support of or challenge to a summary judgment motion, a party may rely on
the pleadings, pretrial orders, admissions, interrogatories, and documents produced through discovery.
for support of/challenge to a summary judgment motion, A party generally may not rely on
a discovery deposition in support of a summary judgment motion
In support of or challenge to a summary judgment motion, a party may rely on a discovery deposition if:
(i) all parties to the action agree,
(ii) the action is only between business entities and the amount at issue is $50,000 or more, or
(iii) the plaintiff is seeking punitive damages.
Jurisdiction goes to the core power of a court to
make a binding adjudication of an issue.
Because jurisdiction is a matter of the court’s power to decide the case, an objection to subject-matter jurisdiction can be raised
at any time during the litigation or on appeal.
The parties do not waive an objection to subject-matter jurisdiction by failing to raise the issue in
the Answer.
A ruling by the trial court is not a basis for reversal unless
an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Supreme Court to attain the ends of justice.
in Virginia, collateral estoppel bars the parties from
relitigating a particular factual issue once it has been actually litigated between the same parties.
Both sides are bound in later litigation by
the fact finding in the first action.
A temporary injunction is issued to
prevent someone from doing an act or directing someone to do an act.
Jurisdiction for TRO’s is only in
the circuit courts
preferred venue for a motion seeking a temporary injuncton is in
the circuit court where the act is being threatened to be done or is being done.
An application for a temporary injunction may be supported or opposed by
an affidavit or verified pleading
when filing a motion for a temporary injunction
a bond must be posted unless the court determines it would be improper.
the posted bond for a temporary injunction is based on the costs and damages that
will be sustained by the opposing party if found to be incorrectly enjoined
if the court orders the temporary injunction, it will not take effect until
the bond is posted
A temporary injunction may be awarded if the court is satisfied that
the plaintiff is entitled to equity.
In considering whether to grant or deny request for injunctive relief, the Court should consider
(i) whether moving party has an adequate remedy at law;
(ii) whether moving party is likely succeed on the merits;
(iii) if moving party is likely to suffer irreparable harm without such relief;
(iv) does the balance of the equities tip in movants favor; and
(v) whether the relief in the public interest.
no single factor for determining injunctive relief is
dispositive
necessary parties:
All persons interested in the subject matter of a suit and to be affected by its results
A person who is subject to service of process may be joined as a party in the action if
1) in the person’s absence complete relief cannot be accorded among those already parties, or
2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may as a practical matter impair or impede the person’s ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest of the person to be joined.
To secure an injunction, a plaintiff must demonstrate
(i) A clear showing that the plaintiff will likely succeed on the merits;
(ii) A clear showing that the plaintiff is likely to suffer irreparable harm without such relief;
(iii) The balance of the equities tip in the plaintiff’s favor; and
(iv) The relief is in the public interest.
Even when appropriate, however, granting equitable relief such as an injunction is
discretionary with the court.
To pursue a preliminary injunction, movant must
file a Bill of Complaint in circuit court to initiate his action.
A preliminary injunction may be issued only after
a hearing on the need for the equitable relief
Final decisions by the circuit court in civil cases are appealable to
the Court of Appeals of Virginia as of right
The statute of limitations for a civil action seeking recovery for personal injuries is
two years, regardless of the theory of recovery.
The cause of action in a personal injury action generally begins to run when
the injury is received.
tolling provision for infancy (i.e., minority)
If a person entitled to bring an action is an infant at the time the cause accrues, the period of limitations does not start to run until the disability is removed
To preserve an issue for appeal
a prompt objection to the trial court’s action must be made, stating the grounds for the objection.
Failure to do so will result in the issue being waived except
(i) if the issue goes to the jurisdiction of the trial court, (ii) for good cause shown, or (iii) to attain the ends of justice.
Generally, excluded testimony is made part of the record when the lawyer offering the testimony, outside the presence of the jury, makes a
proffer or summary what it is believed the witness will say and the other side does not object to the accuracy of the summary.
A notice of appeal must be in writing and filed with the clerk of the general district court within
10 days of the entry of the judgment or order.
When a statute or court rule requires that an act be performed within a prescribed amount of time after any event or judgment, the day on which the event or judgment occurred
should not be counted.
When the last day for performing an act during the course of a judicial proceeding falls on a Saturday, Sunday, legal holiday, or any day or part of a day on which the clerk’s office is closed as authorized by an act of the General Assembly, the act may be performed
on the next day that the clerk’s office is not closed.
The appeal of a judgment by the General District Court to the Circuit Court is heard
de novo.
when a case is heard de novo, on appeal from GDC to Circuit
A new trial is held in the circuit court on any claim or counterclaim that has been properly appealed.
An appellate court generally considers only errors that appear in
the record of the trial court proceedings.
An appellate court does not hear
additional evidence regarding a matter on appeal.
Arbitration agreements are
enforceable in Virginia
Under the Uniform Arbitration Act, a court can compel arbitration if:
(1) there is an agreement between the parties to arbitrate and one party refuses, and (2) the court compelling the arbitration has jurisdiction over the claim.
In Virginia, the Circuit Court has original jurisdiction over any claim for money damages that exceeds
$4,500.
One party’s mere disagreement with the outcome of the arbitration is not enough to
vacate an award.
A court can only vacate an arbitration award if there is
unfairness involved, either in the conduct of the arbitrator herself, or in the procedures followed.
unfairness in the arbitratration can be in the form of
fraud or other undue influence on the part of the arbitrator, as well as the arbitrator exceeding the scope of her power, refusing to postpone a hearing upon sufficient cause, refusing to admit evidence material to the controversy, or the fact that there was no valid arbitration agreement in the first place.
To enforce the arbitration award, a party must make an application to the court having jurisdiction over the parties for the court to
confirm the award and to enter a judgment in conformity with the award.
Generally, a motion for a new trial is
a general motion
a motion for a new trial is not specifically related to the verdict but instead seeking redress for
a certain procedural defects or instances of plain error by the court or misconduct by the jury.
a motion for a new trial is a mechanism that is available where the jury has committed an error that prejudiced a party, examples including
discussing things that should not have been, or misconduct during deliberations, or attempts to tamper with the jury.
Grounds for granting a new trial are those that are so substantial that it
could have resulted in a different verdict, and could not be discovered by due diligence prior to trial.
Under Virginia law, in a civil action a jury verdict must be
unanimous.
If the verdict is not unanimous, this results in
a hung jury
if theres a hung jury, the judge must
declare a mistrial at that point and order a new trial on all issues
because the foreperson of the jury rendered a unanimous verdict to the court, when in fact it was not unanimous, provides for sufficient grounds for
granting motion for new trial.
Generally, during trial communications by a third party with jurors on matters that are material to the case are presumed to be
prejudicial; may be rebutted by evidence showing them to have been harmless.
grounds for granting a new trial include
witness tampering
witness tampering requires that
they were not done with intention of improperly influencing the decision of jury; and not material
If the court were to decide third party communications with a juror could have been prejudicial, the judge may
order an investigation into the matter, and call the juror before the court to inquire about the conversation and its impact on the verdict.
motion for a new trial is not the proper mechanism where
the defendant contends the award is excessive
the proper motion where the defendant contends the award is excessive would be a motion to
set aside the verdict as contrary to the evidence
the standard when the court is determining whether awarded damages are excessive is as follows
The judge does not weigh the evidence , but determines as a matter of law whether the jury could have reached such a verdict as it did from a reasonable consideration of the evidence and the instructions given by the court, and unless the judge can enter judgment for the other party, a new trial on all issues is the appropriate remedy
A motion to set aside the verdict as contrary to the evidence should be granted where
the verdict is based on such insufficient evidence that is so plainly wrong that justice would not be done by enforcing the judgement against the party.
as it relates to excessive damages, grounds for granting the motion to set aside the verdict as contrary to the evidence include
when there is no legal measure of damages, such as pain and suffering, and future losses
the standard for the excessiveness of an award is if it is
so excessive that it shocks the conscience
Grounds an assertion that the award is excessive are
jury sympathy to a party, bias, or misunderstanding of the evidence or instruction
court can order a new trial on damages alone if
liability is clearly established
where an award is excessive, instead of granting a new trial, the court can suggest
remittitur
Remittitur entails the court telling the Plaintiff that they have the option to either
1) accept a reduced award (which in the courts mind is fairer and more reasonable given the evidence at trial, and which does not shock the conscience) or;
2) if the plaintiff rejects the lowered amount the court will order a new trial on all issues.
Generally, punitive damages are not permitted unless
the defendants are deemed to be reckless, or willful and wanton.
Generally, a post-trial motion occurs after
the court enters judgment or decree and the moving party seeks review from that court.
With respect to post-trial motions in Virginia
timing is critical
The governing Virginia rule on timing of post trial potions is
breast of court
under breast of court
if after the circuit court does not suspend, vacate, or modify its final judgment, within 21 days of that final judgment being entered, the court loses jurisdiction over the case, and thus cannot make any rulings thereafter.
The only exception to the breast of court rule is if
fraud is found
A motion for a new trial falls under the timing requirement for
post-trial motions following the entering of a final judgment
while evidence presented at trial was limited to conflicting testimony between the parties, the jury was permitted to
award a verdict that was less than that sought by the plaintiff in his complaint.
if the court denies a party’s motion for a new trial, the best course of action is to
proceed with filing an appeal to the Virginia Court of Appeals
In Virginia, a party generally has a right to appeal a final judgment from the circuit court in civil cases involving
$500 or more to the Court of Appeals of Virginia (CAV).
post-trial motions do not extend the time period for which a party has to
file a notice of appeal.
In order to properly appeal her case an Appellant must
file a notice of appeal with the clerk of the circuit court which presided over the case at trial, no later than 30 days after the entry of the final judgment, along with copies of the notice of appeal sent to all opposing counsel
a timely filing of notice of appeal
perfects such appeal
With regard to the content of the notice of appeal, it must
state whether any incidents of the case will be filed such as trial transcripts, or statement of facts.
The appellant must also
file a notice of appeal with the court of appeals and at that time pay the filing fee; which late payment is ok if within 10 days after filing NOA, after which the appeal will be dismissed
record of appeal includes
documents, exhibits, instructions given or refused, trial court orders, and a transcript of the trial so long as it was filed with the trial court within 60 days following the final judgment.
Once the record of appeal is filed with the court of appeals, the appellant must file her opening brief within
40 days of that filing
The appellants opening brief must contain
a statement of the nature of the case and proceedings in circuit court and any assignments of error with references to the record, where that error was preserved
The SCV can either grant the petition or deny it based on
their own discretion
a request for admission is
a written request that someone admit certain matters
In federal practice, a request for admission
1) The responding party must respond in writing within 30 days of service, either denying specifically or objecting.
2) If a party fails to deny a proper request, the matter is deemed admitted.
While in federal court a response to a request for admission is due within 30 days, in Virginia it is
21 days of service, however a party can move for an extension to respond.
If the response is not sent within the 21 days and no extension is granted by the court; the question is deemed
admitted.
In order to properly object to venue, the defendant must
file an objection to venue, and not a motion to dismiss based on improper venue; within 21 days of service of process upon defendant
The circuit courts have exclusive jurisdiction over amounts sued for in excess of $25,000 for actions to
recover specific personal property
circuit courts have concurrent civil jurisdiction with the General District Court for actions to recover specific personal property when
the amount claimed is more than $4,500, but does not exceed $25,000, excluding costs, fees, and interest.
the jurisdiction of the circuit courts includes concurrent civil jurisdiction with the General District Court for wrongful death actions when
the amount claimed is more than $4,500, but does not exceed $50,000, excluding any claim for costs, attorney’s fees, and interest
jury trials are held in
the circuit courts, not the General District Court
circuit courts do generally have exclusive jurisdiction over amounts sued for in excess of
$50,000.
A motion “craving oyer” in Virginia seeks a court order compelling the plaintiff to
produce a document mentioned in, but not attached to the complaint that is essential to the complaint.
if a motion craving oyer is sustained:
the document becomes part of the plaintiff’s complaint and the defendant can rely on the document in a demurrer.
a motion craving oyer is not
a discovery tool for compelling the plaintiff to produce relevant evidence, but instead places in the document that forms the basis for the complaint into the record.
a demurrer is a responsive pleading that contends
that the original pleading does not state a cause of action or fails to state facts upon which relief may be granted.
a special appearance is made by a person to
challenge the court’s jurisdiction or the validity of service of process.
a plea in bar is a pleading that
asserts facts that, if proven, constitute a bar to an equitable claim
a plea in bar typically asserts facts supporting
an affirmative defense, such as the statute of limitations or the Statute of Frauds.
The General District Court shares concurrent original jurisdiction with the circuit court for an action to recover property damages that do not exceed
25,000
for actions to recover property damages that exceed $25,000
the circuit court has exclusive original jurisdiction.
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or in preparation for trial who is not expected to be called as a witness at trial, only upon a showing of
exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
the facts known and opinions held by a non-testifying expert employed by the other party are not discoverable merely because
they are relevant.
A final circuit court decision involving divorce is appealable by right to
the Court of Appeals of Virginia, not to the Supreme Court of Virginia.
the circuit court failed to either specifically retain jurisdiction in the matter or modify the decree within 21 days of the entry of its order
circuit court lacked the authority to modify the divorce decree; only the proper appellate court has jurisdiction to review the modified order.
final decisions by the circuit court in civil cases are appealable to
the Court of Appeals of Virginia, not the Supreme Court of Virginia.
A party must appeal a final circuit court order within
30 days of the entry of the order.
process that has reached the person to whom it is directed within the time prescribed by law, if any, is sufficient even though
process was not served or accepted as required (except in divorce/annulment action)
for the service of process curative provision to apply
the documents that reach the person must constitute process
where the curative statutes renders service effective, the defendants motion to quash should be
denied
a special appearance may be entered in order to
challenge the exercise of personal jurisdiction over the defendant
a special appearance may be entered to
contest the validity of the service of process.
Although process was not served on the defendant by the private process server, under the curative statute, the service of process is not subject to challenge because
the defendant did ultimately receive the process.
Although process was not served in the proper manner because the defendant corporation received in the process in the mail, under curative statute
the service of process is not subject to challenge because the defendant did ultimately receive the process.
A party may orally move to
amend a pleading
granting leave to amend a pleading is
discretionary
the rules mandate a court to liberally grant leave to amend unless
another party would be prejudiced by the amendment.
A party may move to reopen a hearing to
consider further evidence
When the trial has concluded, a party may make a motion to reopen a hearing to consider further evidence, prior to
the court’s issuance of a final order or within the 21-day period in which the court retains control to modify, vacate, or suspend the order for 21 days after its entry.
a court disposition of a motion to reopen a hearing to consider further evidence is subject to
the court’s sound discretion
In the circuit court, a responsive pleading such as an answer is required to be filed within 21 days of service on the defendant unless
the judge grants additional time.
after the period for filing has expired
A judge has discretion to grant more time or to permit a party to file a pleading late
In evaluating a judge’s exercise of this discretion, an appellate court applies
an abuse-of-discretion standard.
Among the factors that a judge should consider in ruling on a party’s motion for leave to file a late pleading are:
(1) the length and reason for the delay, including whether the non-filing party acted in good faith,
(2) the existence of a substantial basis for the pleading itself (e.g., an answer that raises a valid defense), and
(3) the existence of prejudice to the other party if the filing is permitted.
In a circuit court proceeding, a defendant against whom a default judgment has been entered may not contest issues regarding
his liability at trial.
unlike a general district court action, in a circuit court action in the damages phase of the trial, the defendant (default judgment on liability entered against) may participate in the trial on damages by
objecting to evidence presented by the plaintiff regarding damages.
a defendant who is in default may nevertheless participate in the trial regarding
damages suffered by the plaintiff.
A defendant against whom has been entered a default judgment (with respect to liability) may not contest
the issue of liability
Because the circuit court entered a default judgment against Bart regarding liability, Paige is entitled to
a judgment against him.
a later determination that the plaintiff was contributorily negligent as a matter of law does not affect
the earlier adjudication of Defendant’s liability, when default judgment was entered on that issue
A party taking a nonsuit may refile within the later of
1) six months from the date of entry of the order granting the nonsuit or
2) within the original period of limitations, which ignores the filing of the action that was nonsuited
Since the original period of limitations expired while the first action was pending, the refilling of this action can satisfy the statute of limitations only if
it were brought within six months of the date that the court granted the nonsuit
the tolling of the statute of limitation during the pendency of a claim generally applies when the dismissal of the claim is
not on its merits
the tolling provision does not apply to the dismissal of a claim via
a nonsuit made at the request of the party.
A cross-claim must involve subject matter growing out of
a matter pleaded in the complaint
there is no requirement that a cross-claim be filed before or with
an answer
a cross-claim generally must be filed within
21 days of service on the defendant unless the court grants additional time
A circuit court judgment dated before July 1, 2021, is enforceable for
20 years from the date of the judgment
an action for tortious injury to property must be brought within
five years
the time limit for enforcement of a general district court judgment is
10 years from the date of the judgment
because of the amount of damages sought here for injury to property exceeded $50,000, the action must have been brought in
the circuit court
A circuit court judgment dated on or after July 1, 2021, is enforceable for
10 years from the date of the judgment
a judgment dated before July 1, 2021, is enforceable for 20 years generally without regard for
the judgment creditor’s reason for delaying enforcement of the judgment
when appealing from the GDC, aside from filing a notice of appeal to circuit within 10 days the judgment is entered; the appealing party must do what, and within what time period
Within 30 days from the date of judgment, the appealing party generally must pay the writ tax and court costs for the circuit court, and an appealing defendant generally must furnish an appeal bond.
Where is the appropriate forum for a proceeding to award an injunction: against prosecution of an action requiring all claims against a debtor to be brought in one proceeding
The appropriate forum is the circuit court of the county or city in which the judgment was rendered or such proceeding is pending.
Where is the appropriate forum for a proceeding to award an injunction against prosecution of an action prohibiting enforcement of a judgment earlier obtained in an action
The appropriate forum is the circuit court of the county or city in which the judgment was rendered or such proceeding is pending.
Where is the appropriate forum for a proceeding to award an injunction against prosecution of an action prohibiting enforcement of a judgment earlier obtained in an action
The appropriate forum is the circuit court of the county or city in which the judgment was rendered or such proceeding is pending.
Where is the appropriate forum for a proceeding to award an injunction that seeks to compel or prohibit any other act or proceeding
The appropriate forum is the circuit court of the county or city in which (i) the act is to be done, or being done, or is apprehended to be done; or (ii) the proceeding is pending.
The appropriate forum for a divorce is:
(i) The county or city where the parties last cohabited;
(ii) At the option of the plaintiff, where the defendant resides if the defendant is a resident of the Commonwealth; and
(iii) If an order of publication may be issued against the defendant, the county or city in which the plaintiff resides.
Where is the appropriate forum for distress action?
the county or city in which (i) the premises yielding the rent, or some part thereof, is located; or (ii) goods liable to distress may be found.
When a plaintiff requests that a defendant waive service, what happens if the defendant agrees
A defendant who agrees to waives service is granted additional time in which to respond to the complaint: 60 days for in-state defendants, or 90 days for defendants outside Virginia.
When a plaintiff requests that a defendant waive service, what happens if the defendant refuses to waive service
If a defendant refuses to comply with a request for waiver made by a plaintiff, the court must impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.
Who can serve process
Any person who is at least 18 old and not a party or otherwise interested in the subject matter in controversy may serve process, including private process servers.
where can a sheriff or deputy serve process
A sheriff or deputy can serve process within the sheriff’s jurisdiction or any contiguous jurisdiction.
In what order must the three modes of service on natural persons be attempted?
(1) Personal service
(2) Delivery to a family member aged 16 or over at the defendant’s usual place of abode
(3) Posting at apparent entrance to defendant’s place of abode
What is the curative statute regarding service of process?
Except in suits for divorce or annulment of a marriage, if improperly served process reaches the person to whom it is directed in time, service is good.
The curative statute does not apply to
mere notice or incomplete process
When long-arm jurisdiction does not apply, how must service of process be made on a foreign corporation authorized to do business in Virginia
Personal service on
(i) any officer, director, or the registered agent anywhere in Virginia,
(ii) a person designated to receive process, or
(iii) the clerk of the state corporation commission
When long-arm jurisdiction does not apply, how must service of process be made on a foreign corporation not authorized to do business in Virginia?
Personal service on any agent anywhere in Virginia
How can service of process be made on a nonresident who, personally or by agent, operates a motor vehicle or aircraft on the highways or airways of Virginia?
1) The Commissioner of the Department of Motor Vehicles (for motor vehicles) and
2) the Secretary of the Commonwealth (for aircraft)
are designated as statutory agents to receive service of process on behalf of these nonresident defendants.
What two inquiries must the court make when long-arm jurisdiction is challenged?
The court must determine
(1) whether the facts alleged engage any of the specific provisions of Virginia’s long-arm statute, and
(2) whether the defendant had sufficient minimum contacts with Virginia to make jurisdiction constitutional.
When a statutory agent receives service of process, what action must the agent take?
The statutory agent must mail a copy of the process to the defendant’s last known address and file a certificate of compliance with the clerk’s office.
What notice of a negligence claim must be given to a county, city, or town?
For each cognizable claim, the claimant must file a written statement that includes
(i) the nature of the claim,
(ii) the time of the injury, and
(iii) the place where the injury is alleged to have occurred.
(1) For what claims does the Virginia Tort Claims Act waive immunity?
The VTCA waives immunity for tort claims for
1) damage to or loss of property
2) or personal injury or death
3) caused by the negligent or wrongful act or omission of any employee acting within the scope of his employment.
Whose immunity is waived by the Virginia Tort Claims Act?
The VTCA waives immunity on behalf of state and transportation districts, but not local government.
If a plaintiff wants to sue a state agency under the Virginia Tort Claims Act, who is the proper defendant?
The proper defendant is the Commonwealth of Virginia, not the state agency.
How is the issue of adding a party raised?
A motion alleging nonjoinder
How is the issue of removing a party raised?
A motion alleging misjoinder
For an order to be final, the order must be
1) signed by the judge and
2) contain language indicating that the case is to be concluded by the order.
here the judge, by entry of an order, effectively says, “I am through with this case, there is nothing more for me, or the trial court, to do,” then it is
is a final order governed by Rule 1:1.
order indicated that “nothing further” would be done on the case
This language would likely be enough to render this order final.
Under Rule 1:1
1) Court retains control
2) to modify, vacate, or suspend
3) a final order for 21 days after entry
4) and no longer.
Entry of an order is defined as
the date the judge signs the order.
a final order becomes final and out of the control of the trial court
21 days after it is entered.
To avoid triggering the 21-day period, the order must contain
specific, express language indicating its lack of finality
under the 21 days of Rule 1.1, a motion for reconsideration not incorporated into the final order
would not affect the 21 day period
In interpreting Rule 1:1, the Virginia Supreme Court has stated that
1) the 21-day period will not be tolled by any post-trial motion, and that
2) the only way a judge can re-start the 21-day period is through an express modification, vacation, or suspension of the order.
if a party is concerned that the court will restore a prior order in opposing party’s favor, they should
draft an order that specifically forecloses any modification, suspension, or vacation of that final order after the expiration of Rule 1.1’s 21-day period.
A final judgment, order or decree of a circuit court is appealable as
of right to the Court of Appeals of Virginia.
A notice of appeal must be filed within
30 days of entry of the final order.
the 30 day notice of appeal deadline is not interrupted by
the filing of a motion for a new trial, modification of the order, reconsideration, or to vacate.
Only if the Circuit Court judge modifies, vacates, or suspends the order will
new time periods start all over.
In Virginia, a default judgment is entered in Circuit Court against the defendant when
the defendant fails to file a responsive pleading within 21 days of service.
If a default judgment is entered, the defendant may participate and introduce evidence relating to damages but may not
introduce evidence as to liability if a damages hearing is ordered.
when default judgment is entered against defendant, he
waives any right to future notice of proceedings, but if there is counsel of record for the defendant, notice must be sent to the defendant’s counsel regarding such future proceedings.
By making an appearance on behalf of the corporation, lawyer is now
the counsel of record and must be notified of any future proceedings in spite of prior default judgment against corporation.
Even if a default judgment is entered against a defendant, the defendant’s counsel of record, if there is one, is entitled to
to notice of future proceedings.
For the Circuit Court to hear a case, damages must be sought in an amount in excess of
$4,500
circuit court will not have personal jurisdiction over a defendant when
(1) The basic requirements of service of process were not met
2) and the curative statute does not alleviate defective service
who can serve process in Virginia?
1) any person 18 years of age or older and not involved in the litigation,
2) a Sherriff, or a Sherriff’s deputy
Process requires service of both
the complaint and the summons, prepared by the clerk of the court.
For Virginia corporations, service may be made on
any officer, director, or registered agent of the corporation.
service was by a private courier, who, if over the age of 18, could
properly serve the defendant
attached exhibits to service of process are not relevant to whether
service of process was effective.
where the strict service formalities are not followed, absent a method to cure improper service
the court will lack jurisdiction over the case.
Virginia has a curative statute for service of process, which provides that
if service of process is timely and actually reaches the intended recipient, it will be effective even if the formalities are not exactly followed.
Curative statute: Service must actually
reach the person
mere notice of service
is not enough.
the summons must be attached to the complaint for
the curative statute to cure a defect in service
In a circuit court action, the defendant’s basic response to the complaint
is an answer
an answer must generally be filed
within 21 days after service of process upon the defendant.
defendant is late in filing answer to complaint, he should
file a motion for an extension of time to file an answer
after the period for filing has expired, the court has discretion to
grant more time or to permit a party to file a pleading after the period for filing has expired
A circuit court judge can grant more time or permit a party to file a late pleading even after
a judgment by default has been entered, if within the 21-day period in which the court retains control to modify, vacate, or suspend a final judgment.
In evaluating a judge’s exercise of this discretion in granting extension for filing or permitting a late pleading, an appellate court applies
an abuse-of-discretion standard.
Among the factors that judge should consider in ruling on a party’s motion for leave to file a late pleading are
1) the length and reason for the delay in filing a pleading, including
2) whether the nonfiling party acted in good faith,
3) the existence of a substantial basis for the pleading itself,
4) and the existence of prejudice to the other party if the late filing is permitted.
An affirmative defense is an assertion by the defendant that
even assuming the plaintiff’s allegations are true, the plaintiff is not entitled to the relief sought.
An affirmative defense that constitutes a complete bar to the claim
generally must be pleaded; the failure to do so constitutes a waiver of that defense.
When an affirmative defense merely reduces the liability of a plaintiff, such as the mitigation of damages defense
the defendant is not required to plead that defense but instead may wait until trial to raise the issue.
The statute of limitations for personal injury is
two years, no matter what the theory of recovery is.
The statute of limitations is
an affirmative defense that must be raised by the defendant in a responsive pleading (not by a demurrer)
in asserting the affirmative defense of statute of limitations the defendants doesnt need to
specify the specific statute nor the dates of alleged conduct.
this responsive pleading must be filed within 21 days of the service of the complaint on the defendant.
affirmative defense of statute of limitations
to challenge jurisdiction of the court, defendant should make a
special appearance
for moving to dismiss a default judgment a defendant should make a
special appearance
A defendant who has not been served with process within one year is permitted to make a special appearance for the purpose of
1) filing a motion to dismiss the action with prejudice
2) for the failure of the plaintiff to have the process served within one year.
If a defendant is not served within one year of filing suit, unless the plaintiff used due diligence in trying to effect service, the court is prohibited from
entering judgment against the defendant, and the action is dismissed with prejudice.
to render a valid judgment a court must have both
1) subject matter jurisdiction over the type of case
2) and personal jurisdiction over the parties
Virginia Circuit Courts have exclusive jurisdiction over a breach of contract action when
the amount sued for exceeds $25,000.
Virginia courts are permitted to acquire long-arm jurisdiction over
certain defendants in other states.
To determine whether Virginia has long-arm jurisdiction over out of state defendant, the courts will first ask whether
the facts alleged in the P’s complaint engage any of the specific provisions of Virginia’s Long-Arm Statute.
included in the enumerated list of actions subjecting an actor to the personal jurisdiction of the Commonwealth’s courts are
transacting business in Virginia, and /or contracting to supply services or things in Virginia
The Virginia Long-Arm Statute provides that the courts have jurisdiction over anyone causing injury in Virginia to any person by breach of warranty expressly or impliedly made in the sale of goods outside Virginia when
he might reasonably have expected such person to use, consume, or be affected by the goods in Virginia.
If the defendant’s conduct falls within the Virginia’s long arm statutory requirements, the court will then ask whether
the defendant had the type of purposeful contacts with the forum to satisfy the constitutional requirements of fairness.
whether the defendant had the type of purposeful contacts with the forum to satisfy the constitutional requirements of fairness; commonly referred to as
having sufficient “minimum contacts.”
Through the list of in state independent contractors and the dual advertising (internet and TV ads), it seems likely that a court would find
that D had sufficient minimum contacts with Virginia for it to be fair for D to be sued in Virginia state courts.
When a defendant believes the action was brought in the wrong forum, the defendant can file
a motion to transfer
The motion to transfer must state
(i) where venue would be proper, and
(ii) why venue is not proper where the action was brought.
A motion to transfer must be filed within
1) 21 days of service on the defendant
2) or within any period granted to extend time for filing responsive pleadings.
A cause of action on a contract claim arises where
the contract was made or where the breach occurred.
Venue is proper where
(1) the cause of action, or any part thereof, arose; or
(2) where any of the plaintiffs reside if
(i) all of the defendants are unknown or are nonresidents of the Commonwealth, or if
(ii) there is no preferred or other permissible venue.
There are no provisions in the Virginia Rules of Civil Procedure that allow a plaintiff to choose the venue solely based on
convenience because that is where the plaintiff is employed.
A motion made during a trial by a defendant to strike the evidence tests
the sufficiency of the evidence presented by the plaintiff (i.e., whether the plaintiff has made a prima facie case for a claim).
A demurrer is
a responsive pleading that contends that the original pleading does not state a cause of action or fails to state facts upon which relief may be granted.
A demurrer seeks to test
the sufficiency of the form, style, allegations, or appropriateness of the pleading that was filed.
a demurrer is used against
aggressive pleadings only (such as a complaint).
a demurrer must be
in writing and specifically state the grounds relied on, which will be the only grounds the court considers.
A demurrer can be filed
before or concurrently with other responsive pleadings, but not after.
In a circuit court action, a responsive pleading is required to be filed within
21 days of service on the defendant unless the judge grants additional time.
The demurrant admits
all facts that are well pleaded only for purposes of the court’s considering the demurrer but does not admit conclusions of law.
The rule in Virginia is that a jury verdict must be
unanimous, and such a verdict must be read in open court.
the dissent of one juror is enough to
set aside the verdict.
Although jurors cannot be questioned about misconduct in the jury room, a judge may inquire about
their conduct and conversations outside the jury room.
If a juror has an improper conversation with a litigant or someone close to that litigant, the judge must decide
whether a new trial should be granted; at his discretion
The standard for determining whether the verdict is excessive is
1) does it “shock the conscience” of the court
2) or is it not the product of a fair and impartial decision.
The test used to determine whether a damage award is too high (or too low) is
if it “shocks the conscience” of the court or is not the product of a fair or impartial decision.
punitive damages are available if
the defendant acted with actual malice or under circumstances amounting to a willful and wanton disregard of a plaintiff’s rights.
In a situation in which a verdict is excessive, the court has
wide discretion on how to proceed.
If the court determines that a jury award is excessive, the court may either
(i) grant a new trial, or
(ii) put the parties on terms to accept less than the award, and if either party does not do so, the court can then grant a new trial.
for a jury award that is excessive, the court can suggest
remittitur
for a jury award that is too low, the court can suggest
additur
if the court found the award excessive, the court would probably
reduce the award to a more reasonable sum and ask P to accept it in lieu of the high verdict; If P did not accept the reduced award, the court could order a new trial.
In a situation in which a verdict is excessive, the court has wide discretion on how to proceed; It can
1) grant a new trial on damages alone,
2) on liability alone,
3) or on both damages and liability, depending on the circumstances.
if the jury agrees in liability and facts surrounding cause of injury not in dispute, but the award was excessive/too low the court would probably
grant a new trial solely on the issue of damages
When one holds property that is the subject of competing claims, the stakeholder can file an
interpleader action joining all the claimants, alleging the facts, and asking the court to determine who is entitled to the property.
both the circuit court and general district court have jurisdiction over an interpleader action, an interpleader action brought in general district court is generally subject to
its jurisdictional cap of $25,000.
a general district court does not have what kind of authority in an interpleader actions
injunctive authorityy
instead of an interpleader action brought by a stakeholder to determine rights as owner of stocks for example, a party may
bring a declaratory judgment action, even though a wrong has not been committed, when there is a real live controversy over the parties rights
A person wrongfully deprived of personal property may file an action for
detinue, trespass, or trover.
Detinue is an action to
recover the actual property.
Trespass is an action to
recover monetary damages incurred by reason of lack of possession.
Trover is an action to
recover the value of the property in addition to damages for lack of possession.
as a responsive pleading, a demurrer must be filed within
21 days of service of complaint
the physician patient privilege is only available in
civil proceedings in Virginia
the physician patient privilege is not available if
the physical or mental condition of the patient is at issue
plaintiffs under 18 must sue using
their next friend
if an infants plaintiff’s parents have paid or are obligated to pay expenses associated with personal injury actions, the parents will have
a lien on and right of reimbursement out of any recovery in favor of their infant
although the general statute of limitations for a personal injury action is to years and begins to run from the time of the injury, it is tolled for an infant until
the infant reaches 18 years old
GDC has concurrent JX with Circuit where the amount claimed in a breach of contract action is
more than 4500 and not more than 25,000 ( excluding any claim for interest, atty’s fees, and costs)
where GDC and Circuit have concurrent JX over a claim
the claimant may bring it in either court
small claims court only covers claims with damages not exceeding
5000
In actions to recover or partition personal property, whether tangible or intangible, there is no
preferred (Class A) forum
In distress actions, the preferred (Class A) forum is
in the county or city in which the premises yielding the rent, or some part thereof, is located, or where goods liable to distress may be found.
In a proceeding to award an injunction, the preferred (Class A) forum is
the same court (i.e., circuit or district) in the county or city in which the judgment was rendered or such proceeding is pending.
When the injunction is not sought in connection with a judgment or proceeding in a trial court, the preferred forum is
the circuit court of the county or city in which the act is to be done, or being done, or is apprehended to be done, or where the proceeding is pending.
In suits for annulment, affirmance, or divorce, the preferred (Class A) forum is
the county or city in which the parties last cohabited, or at the option of the plaintiff, in the county or city in which the defendant resides, if the defendant is a resident of the Commonwealth
In cases in which an order of publication may be issued against the defendant, venue may also be in
the county or city in which the plaintiff resides.
A medical malpractice review panel constitutes
an additional procedural step that may be requested by a party to a medical malpractice action.
The opinion of a medical malpractice review panel is admissible at trial as evidence, but
it is not conclusive evidence
request for review by medical malpractice panel review panel must be made within
30 days from the defendant’s filing of responsive pleadings
In Virginia, a non-constitutional erroneous evidentiary ruling is harmless when
the parties have had a fair trial on the merits and substantial justice has been reached
classification of a ruling as an abuse of discretion depends on
whether the judge made an arbitrary or unreasonable decision in the face of the relevant facts and law
an assignment of errors is
a statement by the appellant alleging error by the lower court
Generally, a defendant who files a counterclaim is deemed to have brought the action at the time of
filing the counterclaim.
if the subject matter of the counterclaim arises out of the same transaction or occurrence upon which plaintiff’s claim is based, the statute of limitations with regard to the counterclaim is
tolled by the commencement of the plaintiff’s action
A notice of appeal must be filed within
30 days of entry of the final order
The 30 day notice of appeal period is not interrupted by
the filing of a motion for a new trial or a motion to vacate
Unless the parties agree otherwise, a deposition may be taken of a party or witness designated to testify for a corporation or similar entity in the county or city where
the suit is pending or in an adjacent county or city.
while the county or city in which a deponent resides is an appropriate location for deposing a nonparty, this is not an appropriate location for deposing
the representative of a party that is an entity
while the county or city that is the principal place of business of a deponent is an appropriate location for deposing a nonparty, this is not an appropriate location for deposing
the representative of a party that is an entity
the county or city in which the cause of action arose is not an appropriate place for taking the deposition of
a person designed by an entity as its representative for purposes of the deposition.
Since the circuit court failed to either specifically retain jurisdiction in the matter or modify its final decree within 21 days of the entry of that decree
the circuit court lacked the authority to modify the divorce decree
In order to retain jurisdiction after 21 days of entering a final decree, the court must
specifically state that it is retaining the right to adjudicate the matter, for example the court’s ability to modify a divorce decree.
A court may modify a final order within 21 days of
the entry of the order
the filing of to modify a final decree on the 21st day does not
stop the running of the 21 day period, the court itself must modify the final order within 21 day period.
When a defendant appeals a general district court judgment, the court may permit the plaintiff to amend her complaint to
increase the amount in controversy to an amount greater than the jurisdictional limitation on a general district court action seeking monetary relief
when plaintiff appeals a general district court judgment, plaintiff may not
amend her complaint to increase the amount in controversy to an amount greater than the jurisdictional limitation on a general district court action seeking monetary relief
After the filing of the commissioner’s report, any party may file written objections to the commissioner’s conclusion within
10 days of the filing of the report, or, for good cause shown, at a later time set by the judge.
While the court is not compelled to accept the commissioner’s report, the court should accept
the commissioner’s factual findings when the evidence has been taken in the commissioner’s presence, unless the weight of the evidence is contrary to the commissioner’s findings.
If the commissioner excludes evidence, on request of the party whose evidence is being excluded, the commissioner must permit the party to
present the evidence in order to get it into the record of the commissioner’s proceedings. Rule 3:23.
While a juror generally may not testify about any statement made or incident that occurred during the jury’s deliberations, Virginia recognizes that a juror may testify as to
one or more statements made by a juror during trial that exhibited overt racial/national origin bias tending to show that a racial/national origin stereotype or animus was a significant motivating factor in the juror’s vote and casting serious doubt on the fairness and impartiality of the jury’s deliberations or the verdict.
A demurrer is a responsive pleading that challenges the sufficiency of
the form, style, allegations, or appropriateness of an aggressive pleading.
A demurer contends that
the aggressive pleading does not state a cause of action or that such pleading fails to state facts upon which relief demanded can be granted.
a motion to strike a pleading is used to
test the sufficiency of a defensive pleading such as an answer, plea of the statute of limitations, plea of payment, or demurrer
a motion to strike a pleading is used only against
a defensive pleading, not counterclaims
a motion for a bill of particulars is
a motion asking the court to compel the other side to provide the factual details that form the basis of their pleading
a motion for a bill of particulars may be used against
aggressive as well as defensive pleading
a motion craving oyer in Virginia is made for the purpose of
requiring the document being sued on to be produced at the pleading stage and to become a matter of record and a part of the plaintiff’s complaint.
A motion “craving oyer” in Virginia seeks
a court order compelling the plaintiff to produce a document mentioned in, but not attached to the complaint that is essential to the complaint
if a motion craving oyer is sustained,
the document becomes part of the plaintiff’s complaint and the defendant can rely on the document in a demurrer.
Suits to enjoin the enforcement of or to set aside a judgment can be brought only in special circumstances, usually involving
fraud or mistake
An independent equitable action to set aside a judgment or decree requires proof of the following elements:
(i) a judgment which ought not, in equity and good conscience, to be enforced;
(ii) the existence of a good defense to the alleged cause of action on which the judgment is founded;
(iii) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense;
(iv) the absence of fault or negligence on the part of the defendant; and
(v) the absence of any adequate remedy at law.
suits to enjoin the enforcement of or to set aside a judgment are available in situations involving
fraud or mistake.
An independent equitable action to set aside a judgment or decree need not be brought within
21 days of the final order
The general district court has jurisdiction over an action brought under
the Virginia Freedom of Information Act (FOIA) and has the authority to order a Virginia governmental entity to comply with this act.
there is no requirement that damages be sought with respect to a
FOIA action
there is no requirement that a FOIA action be linked to
a pending lawsuit
a FOIA action may be brought to
acquire information, even when that information is not sought for the purpose of a pending lawsuit
general district court, unlike the circuit court, does not have
general equity powers
In a circuit court action, an answer must be filed within
21 days of service on the defendant unless the court grants additional time.
a subsequent pleading, can properly be served on
a party’s attorney of record.
Although the answer was faxed to the plaintiff’s attorney rather than personally delivered to the attorney, the answer, as a subsequent pleading, can properly be served through
a facsimile transmission
In ruling on a motion for summary judgment, the court can consider
all the pleadings, pretrial orders, admissions, interrogatories, and documents produced
In ruling on a motion for summary judgment, the court may not consider
statements made in an oral deposition unless all parties agree.
In ruling on a motion for summary judgment Answers to requests for admission may be used, even though the requests for admission are based on facts learned from testimony at an oral discovery deposition, so long as
the request for admissions (i) makes no reference to the deposition, and (ii) does not require that the party admit that the deponent gave specific testimony.
admissions may be considered by the court in ruling on a motion for
summary judgement
answers to interrogatories may be considered by the court in ruling on
a motion for summary judgement.
leadings may be considered by the court in ruling on
a motion for summary judgement.
Virginia has adopted the Uniform Enforcement of Foreign Judgments Act (UEFJA), which governs
judgments rendered by a federal court or by the court of another state.
A judgment to be enforced under the UEFJA may be filed in
the circuit court regardless of the dollar amount.
In addition to filing a notice of appeal with the clerk of the circuit court that entered the order being appealed, the appellant must also
send a copy of the notice to the counsel of record for the opposing party.
a party who is appealing a final order of a circuit court must filed a notice of appeal with the clerk of the circuit court that issued the order, rather than
with the clerk of the Court of Appeals of Virginia
A notice of appeal is subject to
a 30-day deadline as measured from the date on which the order being appealed was entered
While the 30-day period begins on the day following that date, the notice is treated as having been received by the court clerk on the date transmitted with
pre-paid expense to the court clerk by priority, express, registered, or certified mail via the United States Postal Service, or by a third-party commercial carrier for next-day delivery.
although the appealing party must include in any petition for appeal and in any opening brief assignments of error specifying what errors it claims that the trial court made, a party need not include this information in
its notice of appeal.
Although the city or county in which the defendant regularly conducts substantial business activity is a permissible forum for civil actions, there must exist
a practical nexus to the forum, such as the location of fact witnesses, plaintiffs, or other evidence to the action.
although the place where a defendant resides or has his principal place of employment is a permissible forum for civil actions, it is not
a preferred forum in which the action must be maintained
although the place where a cause of action arose is a permissible forum for civil actions, it is not
a preferred forum in which the action must be maintained
proper venue for an action brought against the Commonwealth of Virginia under the Virginia Tort Claims Act by a nonresident claimant is Richmond if
if the act complained of occurred outside Virginia
In general, a wrongful death action must be brought by
the personal representative of the decedent’s estate within two years of the decedent’s death
Although there is a two-year statute of limitation on the filing of a wrongful death action that is keyed to the date of the decedent’s death, there is also a limitation on a wrongful death action that is
keyed to the date of the decedent’s injury
A wrongful death action cannot be brought if
the decedent did not die within two years of the injury ultimately causing death and no personal injury action had been filed by the deceased.
A demurrer is an appropriate responsive pleading to challenge
the misjoinder of causes of action, but not the misjoinder of parties.
a party seeking to challenge his joinder to an action should file
a motion to drop him as a party.
while a plaintiff may plead alternative theories of recovery against alternative defendants, all claims must
arise out of the same transaction or occurrence
Generally, a civil action that must be brought in a Virginia Circuit Court (e.g., a wrongful death action in which the amount in controversy exceeds $50,000) must be tried before
a seven-member jury
Although a general verdict is the norm in Virginia, a judge is generally statutorily authorized to
submit written interrogatories to the jury on one or more factual issues. However, if the claim is for injury to the person or wrongful death, the judge cannot do this without the consent of all parties.
wrongful death action was properly brought in a Virginia Circuit Court because the amount in controversy exceeded $50,000, the action failed to comply with Virginia civil procedure statutes because
only six individuals were empaneled on the jury
While Virginia generally does require a civil jury to render a unanimous verdict, Virginia also requires a seven-member jury in a civil action involving
more than the maximum dollar jurisdictional limit of the general district courts
A counterclaim (as well as a cross-claim) is subject to
the dollar jurisdictional limits of the general district court.
For most claims that allege damages to personal or real property, the general district court lacks jurisdiction over claims when the amount claimed is more than
$25,000
a counterclaim may be for more than
the amount sought by the plaintiff
a counterclaim need not be related to
the subject matter of the complaint
while a counterclaim (or a cross-claim) in an action brought in circuit court must generally be filed within 21 days of service of process on the defendant, a counterclaim (as well as a cross-claim) in an action brought in general district court may be filed
at any time before trial.
When money damages are sought based on fraud, the statute of limitations is
two years after the cause of action accrues.
time period for fraud begins running on the date of
discovery of the fraud or when the fraud reasonably should have been discovered by the exercise of due diligence
For civil litigation purposes in Virginia, an infant, a person under the age of 18 years, is
a person under a disability
Infants cannot sue on their own behalf, but instead must sue by
their next friend;
The style of the case is “X, an infant, who sues by her next friend, Y, Plaintiff.”
Failure of an infant to sue by next friend results in a good judgment if
it is in favor of the infant.
If the judgment goes against the infant, the judgment is void.
A misnomer occurs when
the correct person or entity is named as a party in a pleading but under an incorrect name, such as when the person’s name is misspelled
A misnomer can be corrected
by the court on motion of any party.
A misjoinder occurs when
an incorrect person or entity is named as a party in a pleading.
As with a misnomer, a misjoinder can be corrected by
the court on a motion of any party
For a personal injury action, the general rule is that the cause of action accrues, and limitations period begins to run when
the injury is received
In Virginia, the filing of a complaint
stops the running of the statute of limitations
In Virginia, the statute of limitations for a personal injury action is
two years after the cause of action accrues.
The same two-year period in which to initiate an action applies to an infant, except that when a person entitled to bring an action is an unemancipated infant at the time the cause accrues, the period of limitations does not start to run until
the unemancipated infant reaches the age of majority (i.e., 18 years of age).
Va. Code § 8.01-6 permits the tolling of the statute of limitations to
relate back to the date of the initial filing of the action when a new party is added
for the tolling of the statute of limitations to relate back to the date of the initial filing on the action when a new party is added, four requirements must be met
i) The claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth in the original pleading;
ii) The party to be brought in by the amendment or her agent received notice of the institution of the action within the limitations period prescribed for commencing the action;
iii) That party will not be prejudiced in maintaining a defense on the merits; and
iv) That party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against that party.
Affirmative defenses are defenses that, if valid, will
bar the plaintiff’s claim
Generally, a defendant must
plead and prove an affirmative defense.
A contract for sale may waive, modify or exclude any or all express and implied warranties and sell a new home “as is” only if
the words used to waive, modify, or exclude such warranties are conspicuous, set forth on the face of such contract in capital letters that are at least two points larger than the other type in the contract and only if the words used to waive, modify or exclude the warranties state with specificity the warranty or warranties that are being waived, modified, or excluded.
To waive all warranties, a contract must specifically set forth in capital letters, at least two points larger than the other type in the contract, that the dwelling is
being sold “as is.”
By including the defense in its answer, Southern properly pled the defense and it must be
considered by the court.
A party may obtain discovery regarding
any matter relevant to the subject matter in the pending litigation.
It is not grounds for objection that the information sought in discovery will be inadmissible at trial, if
the information appears reasonably calculated to lead to the discovery of admissible evidence.
A party seeking discovery, after reasonable notice, may seek
an order compelling discovery
Arbitration clauses are
enforceable, except when a consumer might be waiving an important substantive right.
Contractual provision[s] limiting the place or court where potential actions between the parties may be brought are
prima facie valid and should be enforced unless the party challenging enforcement establishes that such provisions are unfair or unreasonable, or are affected by fraud or unequal bargaining power.
The question of whether a contract is unconscionable is a question of
law for the court to decide; the issue does not go to the jury.
Every pleading filed must be signed by
a pro se litigant, or by an attorney admitted to practice in Virginia.
The Virginia attorney cannot authorize an attorney licensed in another state, but not in Virginia, to
sign the Virginia licensed attorney’s name to the pleading.
If the pleading is not signed properly, the pleading is
defective and voidable unless and until the signature defect is cured.
A signature defect may be cured within
21 days after it is brought to the attention of the offending party, or if the offending party seeks and is granted leave of court, within a reasonable time of filing.
The corrected pleading or other paper is treated as having been
properly signed when originally served or filed.
A filing that is invalid for lack of signature will not
toll the running of any applicable statute of limitations.
if the signature defect is properly cured, the pleading or motion will
relate back to the date it was originally served or filed.
To what court is a General District Court judgment appealed and what is the standard of review?
A General District Court judgment is appealed to the circuit court.
The standard of review is de novo.
What must be done to appeal a General District Court judgment?
Within 10 days after entry of the order or judgment being appealed, the party must notify the clerk’s office in writing of the appeal.
Within 30 days from the date of judgment, the appealing party generally must pay the writ tax and court costs for the circuit court, and an appealing defendant generally must furnish an appeal bond.
Where is the appropriate forum for a proceeding to award an injunction: against prosecution of an action requiring all claims against a debtor to be brought in one proceeding
The appropriate forum is the circuit court of the county or city in which the judgment was rendered or such proceeding is pending.
Where is the appropriate forum for a proceeding to award an injunction against prosecution of an action prohibiting enforcement of a judgment earlier obtained in an action
The appropriate forum is the circuit court of the county or city in which the judgment was rendered or such proceeding is pending.
Where is the appropriate forum for a proceeding to award an injunction that seeks to compel or prohibit any other act or proceeding
The appropriate forum is the circuit court of the county or city in which (i) the act is to be done, or being done, or is apprehended to be done; or (ii) the proceeding is pending.
The appropriate forum for a divorce is:
(i) The county or city where the parties last cohabited;
(ii) At the option of the plaintiff, where the defendant resides if the defendant is a resident of the Commonwealth; and
(iii) If an order of publication may be issued against the defendant, the county or city in which the plaintiff resides.
Where is the appropriate forum for distress action?
The appropriate forum is the county or city in which (i) the premises yielding the rent, or some part thereof, is located; or (ii) goods liable to distress may be found.
When a plaintiff requests that a defendant waive service, what happens if the defendant agrees or refuses to waive service?
A defendant who agrees to waives service is granted additional time in which to respond to the complaint: 60 days for in-state defendants, or 90 days for defendants outside Virginia.
If a defendant refuses to comply with a request for waiver made by a plaintiff, the court must impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure is shown.
(1) Who can serve process, and (2) where can a sheriff or deputy serve process?
(1) Any person who is at least 18 old and not a party or otherwise interested in the subject matter in controversy may serve process, including private process servers.
(2) A sheriff or deputy can serve process within the sheriff’s jurisdiction or any contiguous jurisdiction.
In what order must the three modes of service on natural persons be attempted?
(1) Personal service
(2) Delivery to a family member aged 16 or over at the defendant’s usual place of abode
(3) Posting at apparent entrance to defendant’s place of abode
What is the curative statute regarding service of process?
Except in suits for divorce or annulment of a marriage, if improperly served process reaches the person to whom it is directed in time, service is good.
Note: The curative statute does not apply to mere notice or incomplete process.
When long-arm jurisdiction does not apply, how must service of process be made on (1) a foreign corporation authorized to do business in Virginia, and (2) a foreign corporation not authorized to do business in Virginia?
(1) Personal service on (i) any officer, director, or the registered agent anywhere in Virginia, (ii) a person designated to receive process, or (iii) the clerk of the state corporation commission
(2) Personal service on any agent anywhere in Virginia
How can service of process be made on a nonresident who, personally or by agent, operates a motor vehicle or aircraft on the highways or airways of Virginia?
The Commissioner of the Department of Motor Vehicles (for motor vehicles) and the Secretary of the Commonwealth (for aircraft) are designated as statutory agents to receive service of process on behalf of these nonresident defendants.
What two inquiries must the court make when long-arm jurisdiction is challenged?
The court must determine (1) whether the facts alleged engage any of the specific provisions of Virginia’s long-arm statute, and (2) whether the defendant had sufficient minimum contacts with Virginia to make jurisdiction constitutional.
When a statutory agent receives service of process, what action must the agent take?
The statutory agent must mail a copy of the process to the defendant’s last known address and file a certificate of compliance with the clerk’s office.
What notice of a negligence claim must be given to a county, city, or town?
For each cognizable claim, the claimant must file a written statement that includes (i) the nature of the claim, (ii) the time of the injury, and (iii) the place where the injury is alleged to have occurred.
For what claims does the Virginia Tort Claims Act waive immunity?
(1) The VTCA waives immunity for tort claims for damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee acting within the scope of his employment.
Whose immunity is waived by the Virginia Tort Claims Act?
The VTCA waives immunity on behalf of state and transportation districts, but not local government.
If a plaintiff wants to sue a state agency under the Virginia Tort Claims Act, who is the proper defendant?
The proper defendant is the Commonwealth of Virginia, not the state agency.
How is the issue of adding a party raised?
A motion alleging nonjoinder
How is the issue of removing a party raised?
A motion alleging misjoinder
Who must sign a pleading filed in a Virginia court?
The pleading must be signed by:
(i) An attorney of record admitted to practice in Virginia and in good standing; or
(ii) A pro se litigant.
What three certifications are made by a lawyer or unrepresented party signing a pleading, written motion, or other paper?
Every party filing a pleading or making a motion certifies that:
(i) He has read the pleading, motion, or other paper;
(ii) To the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and
(iii) It is not interposed for any improper purpose.
The general initial pleading filed by the plaintiff?
complaint
The general responsive pleading filed by the defendant?
answer
A claim by a defendant against a plaintiff?
counterclaim
A claim by a defendant against a co-defendant?
cross-claim
A claim by a defendant against a third-party that the third-party is liable to the defendant for all or a part of any liability that defendant has to the plaintiff?
third party claim
What pleading is used to challenge the sufficiency of an aggressive pleading?
demurrer
When does a demurree who has amended a pleading retain the right to stand upon his original pleading?
When (i) the order of the court shows that the demurree objected to the ruling of the court sustaining the demurrer; and (ii) the amended pleading incorporates or refers to the earlier pleading.
affirmative defenses:
Statute of limitations, laches, res judicata, collateral estoppel, contributory negligence, Statute of Frauds, accord and satisfaction, assumption of risk, discharge in bankruptcy, duress, undue influence, fraud, illegality, infancy, failure of consideration, release, self-defense, usury, workers’ compensation, tender of payment or performance, estoppel, mistake, arbitration, adequacy of common-law remedy, unclean hands
In a circuit court action, when is a defendant in default?
A defendant in default in circuit court when the defendant fails to timely file a responsive pleading.
What are the consequences for a defendant in default?
(i) Loss of the right to any notice of further proceedings
(ii) Waiver of trial by jury on all issues
(iii) In claims for a liquidated amount, judgment against the defendant for the amount appearing to be due
(iv) In claims for an unliquidated amount, the court will hear evidence and fix the amount of damages (unless plaintiff demands a jury trial to fix the amount of damages)
(v) Loss of the right at a hearing for damages to offer proof or argument on the issues of liability or demand trial by jury as to damages (unless default is vacated and late responsive pleadings are permitted)
May a party plead alternative or inconsistent theories of its claim or defense?
Yes, if the alternative or inconsistent theories all arise out of the same transaction.
What standard of review applies to a trial court’s decision to grant a party additional time in which to file a pleading?
Abuse-of-discretion
How can a party give notice that a suit is pending which may affect title to real property?
The party may file a lis pendens with the real property records office where the real property is located.
When may laches be pled as an affirmative defense to bar a claim?
Laches may be pled when the plaintiff delays in bringing an equitable claims to which no statute of limitations applies, and the delay (i) has worked to the disadvantage of the defendant or (ii) warrants the presumption that the plaintiff has waived his right to bring the claim.
What is the statute of limitations for personal injury?
Two years, regardless of the recovery theory
What is the statute of limitations for an action for products liability seeking (1) damages to property that was the subject of a UCC contract
4 years
statute of limitations on injury to other property
5 years
SOL for injury to person
2 years
What is the statute of limitations for an ejectment action to oust an adverse possessor of real property
15 years
What is the statute of limitations for an action to thwart the creation of an easement by prescription
20 years
What is the burden of proof for a fraud claim?
Clear and convincing evidence
statute of limitations for a UCC contract
4 years
statute of limitations for a non-UCC written contract
5 years
statute of limitations for a non-UCC oral contract
3 years
if theres an out of state contract being adjudicated in virginia, the courts will apply
the shorter of Virginia’s statute of limitations or the statute of limitations of the state whose law governs the contract.
what is the general rule regarding scope of discovery?
A party may obtain discovery regarding any non-privileged matter that is relevant to the subject matter in the pending litigation, including inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence.
What must a party show in order to receive work product materials in discovery?
The requesting party must show (i) a substantial need for the materials and (ii) that he is unable to obtain the substantial equivalent of the material by other means without undue hardship.
In what five situations may testimony in a deposition be offered as evidence at trial against a party who had reasonable notice of the taking of the deposition?
1) The witness is dead.
(2) The witness is farther than 100 miles from the place of trial or is out of Virginia (unless his absence was procured by the party offering the deposition).
(3) The witness is unable to attend due to age, illness, infirmity, or imprisonment.
(4) The party offering the deposition has not been able to get the witness to court by a subpoena.
(5) The witness is a judge or certain other persons designated in the Rule.
What is the maximum number of interrogatories that may be served?
Thirty, unless more are authorized by the court for good cause shown
(1) By when must a party respond to a request for admissions, and (2) what is the effect of failing to respond?
(1) A party generally must respond within 21 days after service of the request, but a defendant has at least 28 days after service of the complaint upon him to file an answer.
(2) If the party fails to respond, the matters are admitted.
(1) What motion may a party make if a person fails to comply with discovery, and (2) what certification must accompany that motion?
(1) After reasonable notice, a party seeking discovery may move for an order compelling discovery.
(2) The motion must include certification that the movant has in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute.
Name three sanctions that a court may impose for failure to comply with a discovery order.
(i) Treat an evasive answer as a failure to respond;
(ii) deem matters admitted;
(iii) bar the disobeying party from contesting the issue(s);
(iv) strike pleadings;
(v) hold the disobeying party in contempt (except for failure to submit to a mental or physical exam);
(vi) dismiss an action and grant a default judgment; or
(vii) order a disobeying party to pay the other party’s attorney’s fees and costs for litigating the motion to compel.
For which three equitable claims is there a right to a jury?
(1) Suits to establish, impeach, or probate a will
(2) Suits to quiet title to real estate
(3) A plea in equity (i.e., a plea in bar)
What are commissioners in chancery, and what is their role with respect to the circuit courts?
Circuit courts may appoint and refer equitable matters to a commissioner in chancery.
The commissioner is directed to hold evidentiary hearings, research the law involving the case, and report back to the court with recommended fact conclusions and advice as to the law.
The court is not bound by the commissioner’s findings, but the commissioner’s report on questions of fact is deemed prima facie correct and entitled to great weight.
Of the following, which can a court generally NOT consider in ruling on a summary judgment motion: pleadings, pretrial orders, admissions, interrogatories, documents produced, depositions?
Depositions, unless all parties agree.
Who may move for a summary judgment?
Either party may move for a summary judgment.
The occurrence of any of three events will terminate a plaintiff’s right to a take a first nonsuit (i.e., a voluntary dismissal). What are these three events?
(1) A motion to strike the evidence has been sustained.
(2) The jury retires from the bar to decide the case.
(3) The action has been submitted to the court for decision.
Can a defendant appeal an order granting a nonsuit?
Yes, because an order granting a nonsuit is a final order
How long after entering a final order may the court generally modify, vacate, or suspend the order?
Twenty-one days
When a party in favor of whom the verdict was rendered moves to set aside the verdict, what are the court’s four options?
(1) Grant a new trial limited just to damages
(2) Grant a new trial limited just to liability
(3) Grant a new trial as to both damages and liability
(4) If the court agrees that the amount of damages awarded is too high or too low, put the parties on terms to pay more or accept less and if that is not agreeable, then to order a new trial.
What are two bases for a court to grant a motion for judgment notwithstanding the verdict (JNOV)?
(1) A finding as to liability that is contrary to the evidence or the law
(2) A finding as to damages that is contrary to the evidence or the law
After the expiration of the 21-day post-judgment period, under what five circumstances can the court grant relief from a default judgment?
(1) Fraud on the court, if the motion for relief is made within two years from the date of the judgment
(2) A void judgment
(3) Proof of an accord and satisfaction
(4) Proof that the defendant was, at the time of service of process or entry of the judgment, a person in the military service of the United States
(5) Clerical errors
On what two grounds can a bill of review be filed?
A bill of review may be brought based on (1) an error of law that is apparent on the face of the record, or (2) the basis of newly discovered evidence.
What is the deadline for filing a bill of review?
A bill of review must be filed within six months of entry of the final order.
What five elements must a defendant prove in an equitable action to set aside a judgment or decree?
(i) A judgment that ought not, in equity and good conscience, be enforced;
(ii) The existence of a good defense to the alleged cause of action on which the judgment is founded;
(iii) Fraud, accident, or mistake that prevented the defendant from obtaining the benefit of his defense;
(iv) The absence of fault or negligence on the defendant’s part; and
(v) The absence of any adequate remedy at law.
Are agreements to arbitrate generally enforceable?
Yes; the court must enter judgment on the arbitration award upon the application of the prevailing party.
Name three grounds on which an arbitration award may be vacated.
(i) The award was obtained by corruption, fraud, or other undue means.
(ii) There was partiality on the part of the arbitrators.
(iii) The arbitrators exceeded their powers.
(iv) The arbitrators refused to postpone the hearing upon sufficient cause being shown there for, refused to admit evidence material to the controversy, or otherwise failed to conduct the hearing as required by statute.
(v) There was no arbitration agreement, and the party made objection as to this issue.
When does a misnomer occur, and how is it corrected?
A misnomer occurs when the correct person or entity is before the court but under an incorrect name. It can be corrected by the court on motion of any party and on affidavit of the correct name.
In what circumstances may joint tortfeasors seek contribution?
Contribution is permitted among tortfeasors when the wrong results from negligence and does not involve moral turpitude.
What is an aggressive pleading? Name three examples.
An aggressive pleading is a pleading that asserts a claim for relief. Examples: Complaint, counterclaim, cross-claim, third-party complaint
What is a responsive pleading? Name three examples.
A responsive pleading is a pleading that responds to an aggressive pleading. Examples: Answer, plea of the statute of limitations, plea of res judicata, plea of payment
What damages can be sought in a wrongful death action?
Damages include recovery for:
i) Sorrow, mental anguish, and solace
ii) Compensation for loss of deceased’s income, services, protection, care, and assistance
iii) Medical expenses attributable to the injury that resulted in the deceased’s death;
iv) Reasonable funeral expenses
v) Punitive damages
What cases may be appealed as of right to the Court of Appeals of Virginia?
i) Final judgment, order or decree of a circuit court (except those appealable as of right to the Supreme Court of Virginia)
(ii) Final decision of a circuit court reviewing a decision of a state administrative agency
(iii) Final decision of the Worker’s Compensation Commission
(iv) Interlocutory decree or order from the circuit court
(v) Civil contempt
What cases may be appealed by petition to the Court of Appeals of Virginia?
Final decisions by the circuit court in civil cases are appealable to the court of appeals as of right; petition is no longer required.
What cases may be appealed as of right to the Supreme Court of Virginia?
(i) A final decision, judgment, or order of a circuit court involving a petition for a writ of habeas corpus
(ii) Any final finding, decision, order, or judgment of the state corporation commission
(iii) A judgment by three-judge panel of the circuit court disciplining an attorney
(iv) A decision by circuit court punishing professional corporation or LLC for willful failure to comply with ethical standards or applicable statutes
What cases may be appealed by petition to the Supreme Court of Virginia?
(i) Any final decision by the Court of Appeals
(ii) An order of a circuit court granting or refusing to grant an injunction
(iii) An order of a circuit court granting nonsuit when there is a dispute over the correctness of the trial court’s action in granting a nonsuit
What is the effect of a party filing an appeal in the wrong appellate court?
The appellate court must transfer the matter to the correct appellate court. The appeal should not be dismissed.
What must be included in the assignment of error included in any petition for appeal?
Each assignment of error must include an exact reference to the page(s) of the transcript, written statement of facts, record, or appendix where the alleged error has been preserved.
In which court and by when must a notice of appeal be filed?
A notice of appeal must be filed in the trial court within 30 days of entry of the final order.
What must a notice of appeal include?
A statement of whether any transcript or statement of facts, testimony, and other incidents of the case will be filed.
When must an appeal bond be filed?
When the appeal is of right to the Court of Appeals of Virginia, the appeal bond must be filed with the notice of appeal in the trial court.
When and where must a transcript of the trial be filed?
In the trial court within 60 days of entry of the order being appealed
When must a petition for appeal be filed in the Supreme Court of Virginia?
Within 90 days of the date of entry of the order being appealed
In either appellate court, what is the standard of review for the trial court’s factual findings by the judge or jury?
The appellate court will give deference to the circuit court’s factual findings and view the facts in the light most favorable to the prevailing party in the trial court.
In either appellate court, what is the standard of review for the court’s determination of the law?
The appellate court reviews issues of law de novo.
In either appellate court, what is the standard of review for mixed question of law and fact?
Where the trial court decided fact issues necessary to deciding the issue of law, the appellate court gives deference to the trial court’s fact findings and reviews the law de novo.
What is the first step that a judgment creditor must take to collect a judgment from personal property in which a judgment debtor has an interest?
The judgment creditor must request that the court clerk issue a writ of fieri facias (i.e., a writ of execution) on the judgment.
What are the three steps a sheriff takes to execute a writ of execution on tangible personal of the judgment debtor?
(i) Go the address directed by the writ of execution and levy on the property.
(ii) Require the creditor to post an indemnification bond.
(iii) Sell the property levied on at public auction.
(1) How is a lien on intangible personal property of the judgment debtor located in Virginia created?
(1) Delivering the writ of execution to the sheriff
How long does the lien on intangible personal property of judgment debtor located in Virginia last?
one year
how is a lien on intangible personal property of judgment debtor located in Virginia enforceed
(3) By requesting the clerk to issue a garnishment
How does a judgment creditor obtain a lien on real property owned by the judgment debtor?
A judgment becomes a lien when it is recorded (i.e., docketed) in the circuit court clerk’s office in each jurisdiction where the land is situated.
What type of jointly held interest in land cannot be subject to a lien granted by less than all co-owners?
Tenancies by the entirety
What are the two options for a judgment creditor to enforce a foreign judgment in Virginia?
(1) Under the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), file a properly authenticated copy of the judgment and an affidavit stating the name and address of the debtor in any Virginia circuit court.
(2) Domesticate the foreign judgment by getting an exemplified copy and suing on it in any Virginia court (depending on dollar amount).
What type of claim must a landlord assert to recover rent by proceeding against the tenant’s tangible personal property?
Distress, which is an in rem law claim
What law-based claim should the owner of specific personal property pursue to recover the property or a money judgment for its value?
Detinue
What is the plaintiff entitled to recover if he succeeds in a detinue action?
(i) Either (a) possession of the property, or (b) a judgment for the value of the property at the time of its wrongful detention; and
(ii) Damages for wrongful retention of the property by the defendant.
What court has jurisdiction over a detinue claim?
Either the general district court or the circuit court, depending on the dollar amount sought.
In an action for detinue, is a demand for the return of the property required prior to filing suit?
No, unless the initial possession was lawful but has ceased to be permissive.
Where is a permissible venue for bringing a detinue action?
Where (i) the property is physically located, or (ii) evidence of the property is located
What five elements must be proven to establish a detinue claim?
(1) The plaintiff has a property right recognized by law in the property.
(2) The plaintiff has a right to immediate possession.
(3) The property is capable of identification.
(4) The property has some value.
(5) The defendant now has, or earlier had, possession at some time prior to institution of the suit.
When a person seeks a determination of her rights and duties before any wrong has been committed, what action should be filed?
A declaratory judgment action
Under the Virginia Tort Claims Act (VTCA):
(i) What notice is required before filing a claim?
(i) Notice of the claim generally must be given within one year after the cause of action accrued.
Under the Virginia Tort Claims Act (VTCA): (ii) What is the earliest that a claim can be filed?
An action cannot be brought earlier than (a) the denial of the claim or (b) six months after the filing of the notice.
Under the Virginia Tort Claims Act (VTCA): What statute of limitations applies?
An action must be filed no later than eighteen months from the filing of the claim or within two years after the cause of action accrues.
What action must be brought to litigate the right to possess real property?
Unlawful entry or detainer
What is proper claim at law for trying title to land?
Ejectment
What is a bill to quiet title, and when is it unavailable
A bill to quiet title is an equitable action by which the court can determine title to land. It is generally unavailable when a claim at law (i.e., ejectment) would provide an adequate remedy.
When two or more owners of land or personal property cannot agree on what to do with the property, what action can be filed?
A partition action (unless the plaintiff alleges 100 percent ownership of the property)
What relief may a court grant in a partition action?
If partition in kind can be conveniently made, the court must do so.
What remedy may be sought to compel a public official to perform a purely ministerial duty imposed on him by law?
Writ of mandamus
In Virginia, a judge has discretion to
grant more time, or permit a party to file a pleading after the time period for filing has expired
Among the factors that the judge may consider are the length of the delay, the reason for the delay, and the harm, if any, to the opposing party.
if the claimed damages in personal injury action are more than $4,500 and do not exceed $50,000, the claim could be brought in
in GDC or Circuit
In general district court, one of the consequences of a default is that the defendant waives
all objections to the admissibility of evidence
In the circuit court, a defendant in default does not waive
all objections as to the admissibility of evidence and is entitled to participate fully in a hearing on damages.
A defendant in default may participate fully in a hearing on damages in
circuit court, including by presenting evidence.
a defendant in default in general district court waives all objections to
the admissibility of evidence.
As an affirmative defense that would bar the plaintiff’s claim, contributory negligence must be
pleaded or else it is waived.
In Virginia, the plaintiff’s contributory negligence is a complete bar to recovery, but the plaintiff’s negligence must be
a substantial cause of the injury and must occur at the same time as the defendant’s negligence
