VA Civ Pro

Question 1

Appeals

Answer 1

Final decisions by the circuit court in civil cases are appealable to the Court of Appeals of Virginia as of right.

Question 2

Statute of limitations

Answer 2

Civil action seeking recovery for personal injuries = 2 years (begins to run when injury is received)

Wrongful death action = 2 years (from the date of death; not two years from the date of the accident)

Unwritten contract, express or implied = 3 years (after the cause of action has accrued, which is time of breach)

Contract that is in writing and signed by the party to be charged = 5 years

Contract that is in writing and not signed by the party to be charged = 3 years

Defamation = 1 year (cause of action accrues on the date the defamatory acts occurred)

Fraud = 2 years (accrues when the plaintiff becomes aware of or should have become aware of the fraud)

Note on minors: There is a 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.
In Virginia, the age of majority is 18 years of age.

Question 3

Motion for Summary Judgment

Answer 3

Court can consider all the pleadings, pretrial orders, admissions, interrogatories, and documents produced.

Discovery depositions under Rule 4:5 (oral depositions) may not be used as a basis for sustaining a motion for summary judgment, unless all parties to the action agree.

Exceptions
(1) Answers to requests for admission may be used in a summary judgment motion, even though the requests for admission are based on facts learned from testimony at a Rule 4:5 deposition, so long as
(i) the request for admission makes no reference to the Rule 4:5 deposition; and
(ii) the request for admission does not require that the party admit that the deponent gave specific testimony.

Question 4

Preserving an objection for appeal

Answer 4

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.

Question 5

Contribution

Answer 5

Contribution among tortfeasors is allowed under the Virginia Code when negligence is the cause of harm without involving moral turpitude.

A crucial requirement is that the party from whom contribution is sought must have been liable to the plaintiff, meaning the injured party could have recovered against the contribution defendant.

The Virginia Code contains a statute of repose providing that no action to recover for any injury arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution for damages sustained as a result of such injury, shall be brought against any person performing or furnishing the design or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction.

Question 6

Counterclaims

Answer 6

A defendant may plead as a counterclaim any cause of action the defendant has against the plaintiff whether or not it arises out of the same transaction that is the subject of the plaintiff’s complaint and whether it is in tort or contract.

While a counterclaim arising out of the same transaction identified in plaintiff’s complaint will relate back to the date the complaint was filed for purposes of statute of limitations, there is no requirement that defendant’s counterclaim relate to the plaintiff’s complaint.

Question 7

Nonsuit

Answer 7

A party may take a nonsuit during trial before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision.

A party cannot nonsuit a cause of action, without the consent of the adverse party who has filed a counterclaim, if the counterclaim arises out of the same transaction or occurrence as the claim of the party seeking to nonsuit. This rule does not apply if the counterclaim can remain pending for independent adjudication by the court.

A plaintiff has one nonsuit as a matter of right if done so timely. While the court has discretion with additional nonsuits, there is no language in the nonsuit statute qualifying the right to a nonsuit based on a trial continuance.

Question 8

Venue

Answer 8

Venue is not jurisdictional in Virginia and no case shall be dismissed on that basis.

A party may object to venue as being improper venue.

A defendant must file an objection to venue (not a motion to dismiss as Togo did here) within 21 days of service of process upon the defendant. In its pleading, a defendant must set forth why venue is improper and where it believes venue to be proper. The matter shall be heard promptly by the court.

Venue is where the cause of action arose, or where the principal place of business is, or where the registered office is located, or where the defendant regularly conducts substantial business
 There must be a practical nexus to the case

Question 9

Demurrer

Answer 9

A demurrer challenges the legal sufficiency of a complaint (or counterclaim, crossclaim or third-party claim).

A demurrer, in the circuit court, must be filed in writing, within 21 days of service of process unless the trial judge grants leave for additional time within which to file it.

The demurrer must state the specific grounds (not merely failure to plead a cause of action), and the trial judge may look only to the face of the plaintiff’s pleading in ruling on the demurrer.

Question 10

Wrongful death action (name for filing)

Answer 10

Every action for wrongful death must be filed in the name of the personal representative, not the deceased as in this case.

Question 11

Appeals from GDC to circuit court

Answer 11

Must be done within 10 days

The event day does not count

Question 12

Standard of review in appeal from GDC to Circuit Court

Answer 12

The trial in circuit court is a trial de novo

Question 13

Vacating a judgment for fraud

Answer 13

So long as the motion is made within 2 years from the date of the judgment, the Court can vacate the judgment on the ground of fraud on the Court.

Question 14

Reopening a judgment in GDC

Answer 14

On a motion made within 30 days from the judgment, the GDC can, within 45 days of the judgment, reopen the matter.

Question 15

Defendant’s participation in a default judgment hearing

Answer 15

The defaulting defendant is entitled to appear at the hearing, and fully participate in the damages hearing.

The Circuit Court can grant leave to the defendant in default to file late responsive pleadings and cure the default.

Question 16

Service by a sheriff

Answer 16

A sheriff may only serve the summons and complaint in her county/city or in a contiguous county/city.

Question 17

Recipient of service

Answer 17

Papers must be served by “any person of age 18 years or older and who is not a party or otherwise interested in the subject matter of the controversy.”

Question 18

Service on a foreign corporation

Answer 18

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

Question 19

Effectiveness of improper service

Answer 19

If the defendant received the summons and complaint [the process] in a timely manner, it’s effective even if improper.

Forgiveness of improper service does not pertain to cases of divorce and annulment of marriage.

Question 20

Personal jurisdiction

Answer 20

To exercise personal jurisdiction over a nonresident defendant, a Virginia court needs to satisfy both the Virginia Long Arm statute and show that the exercise of personal jurisdiction does not violate principles of Due process

Long Arm Statute
The VA Long Arm statute provides that a court in VA can exercise personal jurisdiction over a nonresident if the cause of action arises from any one of several enumerated activities or conduct, including:
* Transacting business in the Commonwealth (VA is a single transaction state, and one business transaction leading to the cause of action will suffice)
* Contracting to supply services or things in the Commonwealth
ADD

Due Process
General test: whether the minimum contacts (International Shoe) of a nonresident that lead to the claim in the case are sufficient in quality and nature to make it reasonable to exercise personal jurisdiction.
Moreover, so long as the contact has a substantial connection to the forum, even a single act can satisfy due process.
In short, the minimum contacts test is satisfied if the defendant had contacts with Virginia displaying purposeful availment of Virginia’s laws and, thus, putting the defendant on reasonable notice of suit in VA.

Question 21

Attorney’s fees

Answer 21

The general rule in Virginia is that, in the absence of a statute or contract to the contrary, a court may not award attorneys’ fees to the prevailing party.

A significant exception to that rule is that in a fraud suit, the judge, in the exercise of his the court’s discretion, may award attorneys’ fees to a defrauded party.

Question 23

Timeliness of responsive pleadings

Answer 23

Responsive pleadings must be filed within 21 days of service on the defendant.

The trial court’s given the discretion to permit the late filing of responsive pleadings, including when the time for filing responsive pleadings has passed.

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

Question 24

Relief from default judgment (i.e., denying a Motion for Default Judgment)

Answer 24

The trial court’s given the authority, for good cause shown, to grant relief from a default.

Question 25

Leave to amend pleadings

Answer 25

Leave to amend is discretionary and is to be liberally granted to attain the ends of justice.

A motion for leave to amend can be made orally.

Question 26

Factors for granting TRO

Answer 26

The factors a court should consider in considering whether to grant or to deny injunctive relief include the following:
 Is there an adequate remedy at law?
 Does the plaintiff have a likelihood of success at trial?
 Is the harm to the plaintiff if the injunction is not granted greater than the harm to the defendant if the injunction is granted?
 Does the public interest weigh in favor or against an injunction?

Question 26

Obtaining immediate injunctive relief

Answer 26

A temporary injunction

If the Complaint was not a verified one, the motion should attach affidavits supporting the grounds for a temporary injunction

The Court, as a condition of granting any temporary injunction is likely to require the Plaintiff to post a bond to protect the Defendant if, on a trial on the merits, the Court determines that the injunction should not have been granted.

Question 27

Choice of law

Answer 27

Virginia’s choice of law rules provide that if the parties choose the law to apply, then that will govern.
 Virginia’s UCC: “When a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or such other state or nation shall govern their rights and duties.”

Contracts
 Virginia choice-of-law principles require application of the law of the place of performance on questions of what the contract requires.
 Questions of contract formation, by contrast, are governed by the law of the place of contracting.

Question 28

Ad damnum

Answer 28

When a defendant appeals, the Circuit Court is granted the discretion to permit the plaintiff to amend the complaint to seek an amount in excess of the dollar jurisdictional limit of the General District Court.

Question 29

Jury trials in GDC

Answer 29

There is no statutory authority for a jury in the GDC. Only the circuit courts are authorized to conduct jury trials

Question 30

§ 11-2 of the VA Code

Answer 30

Statute of Frauds

Question 31

Bill of review

Answer 31

A bill of review lies only to a final order in an equitable proceeding.

The bill of review must be filed within six months of the entry of the final order against which the bill of review is being filed.

A bill of review can be brought on either of two alternative grounds: [1] error of law apparent on the face of the record of the proceeding; and [2] newly/after discovered evidence.

 If the bill of review is sought on the grounds of newly/after discovered evidence, leave of court to file the bill of review must be first obtained.
 When seeking leave to file a bill or review on the grounds of newly/after discovered evidence, the moving party should allege, and be prepared to prove what the evidence would be and attach affidavits of witnesses to support the allegations so the court can make a finding that all the elements are present.
* The elements are:
[a] the evidence was discovered after trial; and
[b] the evidence is material and on another trial should produce opposite results on the merits; and
[c] the evidence is not cumulative, corroborative or collateral; and
[d] the evidence could not have been discovered with reasonable diligence before trial; and
[e] the evidence can b produced at a new trial.

Question 32

Adding defendants

Answer 32

The plaintiff must seek leave of court to file an amended complaint adding defendants.

Under the Virginia Code, new parties may be added to a case by order of the court at any time as the ends of justice may require.