Va Civ Pro Flashcards
For an action based on an oral contract, the statute of limitation is
3 years
A cross-claim must involve subject matter growing out
A matter stated in complaint
A final circuit court decision involving divorce is appealable by
Right to Va Ct of App
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 an action for
Divorce or annulment
for the curative provision to apply, the documents that reach the person must constitute
Process
The General District Court shares concurrent original jurisdiction with the circuit court for an action to recover property damages that do not exceed___. For actions greater than that, CC has
$25k; Exclusive 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
1) EXCEPTIONAL CIRCUMSTANCES under which it is
2) IMPRACTICABLE for the party seeking discovery to obtain facts or opinions on the
3) SAME SUBJECT by
4) OTHER MEANS
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.
What happens if 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.
.
For how many years is A circuit court judgment dated before July 1, 2021, enforceable?
20 yrs from date of judgment
While plaintiffs under 18 must sue by their next friend, an infant is entitled to bring an action to recover, as part of his personal injury action ____. What is SOL for this action?
reimbursement for past and future expenses of curing or attempting to cure his injuries.
The statute of limitations is the same as on the rest of the infant’s claim for personal injuries.
The infant does not have to have paid these expenses personally or be liable for payment of them to recover the expenses. Instead, if the infant’s parents have paid or are obligated to pay these expenses, the parents will have a lien on and right of reimbursement out of any recovery in favor of the infant.
When does GDC have concurrent original jurisdiction with the circuit court ?
where the amount claimed in a breach of contract action is more than $4,500 but no over $25,000 excluding any claim for interest, attorney’s fees, and costs. and up to $50,000 for personal injury or wrongful death
Is there preferred (Class A) forum in actions to recover or partition personal property
No regardless of whether tangible or intangible
Distress action: Class A or B? Forum is where:
Preferred class A 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.
Admissible or no: The opinion of a medical malpractice review panel
Admissible but is not conclusive evidence.
Generally, a defendant who files a counterclaim is deemed to have brought the action
At time of filing 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, and that period is not interrupted by
Filing of a motion for a new trial or motion to vacate
What is default SOL for Ks involving sale of goods? Can parties alter that SOL?
4 years … can reduce to no less than 1 year but cannot increase higher than 4.
For UCC contracts, the statute of limitations begins to run when
Breach occurs
For a breach of warranty claim, the breach generally occurs when
Tender of delivery is made
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
County or city where suit is pending or in adjacent county/city
Modifying divorce decree: what must CC do to retain authority to modify divorce decree after judgment
CC must specifically retain jurisdiction in the matter or modify its final decree within 21 days of the entry of that decree or else the circuit court lacks authority
Modifying divorce decree: How long does CC have to retain jurisdiction in the matter or modify its final decree? What is consequence of Ct failing to do so?
must retain jx or modify within 21 dats or else lacks the authority to modify the divorce decree
When a defendant appeals a general district court judgment, the court may permit the plaintiff to amend her complaint to
Increase amount in excess than the jx amount of GDC. But P cannot do so
Who may file objections to commissioner’s report and when may the file?
10 days after commissioner files report OR at later time set by judge after party shows good cause
An action for ejectment generally must be brought within __ years of the accrual of the right to bring this action
15
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
Disability is removed
When must an action to recover land be brought?
15
Notwithstanding the effect of any disabilities on the running of the statute of limitations in an action to recover land, the action must be brought within ___ years from when the cause of action first accrued
25
When must Initial suit papers in an unlawful detainer action be served?
at least 10 days before the RETURN DATE, which is the first date that the case is on the court’s docket.
Demurrer 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.
Claims based on UCC contracts for the sale of goods must be brought within
4 years
Unlawful detainer
action at law by which the owner of real property can regain possession from a person who is in wrongful possession of the property.
Most common is landlord tenant
Generally, every action for personal injuries must be brought within __\ years after the cause of action accrues.
2
When does SOL for personal injury action begin to run?
when injury is received regardless of when it is discovered.
Continuous treatment rule
when medical malpractice occurs during a continuous, ongoing treatment during which a specific illness or condition should have been diagnosed and was not, the cause of action accrues when the improper course of examination terminates
For P to bring Suit to enjoin the enforcement of or to set aside a judgment, P must show
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.
Does GDC have authority over FOIA actions?
Yes and has the authority to order a Virginia governmental entity to comply with this act.
What kind of evidence may ct consider in ruling on a motion for summary judgment?
all the pleadings, pretrial orders, admissions, interrogatories, and documents produced, but may not consider statements made in an oral deposition unless all parties agree.
Virginia has adopted the Uniform Enforcement of Foreign Judgments Act (UEFJA), which governs judgments rendered by
Federal or foreign Ct
What court can P seek to enforce UEFJA judgment / what is the dollar amount to enforce these judgments?
in Cc regardless of 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.
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 forum
Practical nexus to forum examples
the location of fact witnesses, plaintiffs, or other evidence to the action.
In general, a wrongful death action must be brought by ____ within ___ years of the decedent’s death.
the personal representative of the decedent’s estate; 2 years
Can party use demurrer to challeneg misjoinder of parties?
Yes
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 ___-member jury.
7
Are counterclaims and cross-claims subject to the dollar jurisdictional limits of the GDC?
Yes
When money damages are sought based on fraud, the statute of limitations is ___ years after the cause of action accrues. When does SOL begin to run?
2 years…
This time period 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.
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
How long do circuit courts retain jurisdiction to consider post trial motions?
21 days after entry of a final judgment in CC
Civil appeals from CC go first to what court?
Ct or Appeals
What is the result when a party appeals to wrong appellate court
transferred to right ct
3 reasons a juror strike is for cause
juror is 1) related to either party of case, 2) has any interest in outcome, or 3) has an apparent bias or prejudice to any party
To be considered on appeal, errors must be
raised by an objection to trial court
appeals from GDC to CC are considered
de novo …brand new trial
A motion to re open a GDC case must be made within
30 days
A motion to vacate judgment obtained by fraud on ct must be made within
2 yrs of entry of judgment
How long to file notice of appeal filed in CC
30 days after entry of final order
After losing a civil appeal in Virginia CT of appeals, a party may
file a petition for appeal w SC
Motions for summary judgment: use of deposition testimony transcripts
may not be directly admitted as evidence in a MSJ
Motions for sj: Use of Party’s Admissions provided in response to a discovery request for admission
may be admitted as evidence in a MSJ even if question stems from deposition answer…
question can’t specially make reference to depo but can
Is subject matter jurisdiction waivable?
No, can be raised at any time
Is it waivable? personal jx
yes
Ends of justice exception allows a party to
raise an issue on appeal that was not preserved in trial ct
objecting to personal jx after filing an answer or conducting discovery
an objection to this type of jx cannot be made after a party files an answer, makes a general appearance or engages in discovery
Defendant’s motion to change venue must be made within how long
21 days of service of process on D
A demurrer is a filing that does what
challenges the legal sufficiency of a complaint (or counterclaim, crossclaim or 3rd party claim) VA’s equivalent of 12 b 6
Wrongful death sol
2 yrs from date of death
What type of filing challenges an action for exceeding the SOL?
Plea in bar
Wrongful death suit: first class of beneficiaries
surviving spouse, children and parents (only if they were supporting the decedent at time of the death)
Wrongful death suit: second class of beneficiaries
If no spouse, children, then to parents, brothers and sisters of the deceased and any other relative who was primarily dependent on the decedent and lived w them
SOL for written Ks
5 years
SOL for oral Ks
3 years
SOL for defamation
1 yr of date communication
A civil P cannot nonsuit their case when
1) a motion to strike has been sustained or 2) after the jury leaves for deliberation or 3) after the action has been submitted to the ct for decision
Who may serve process
any person of age 18 or older and who is not a party or otherwise interested in subject matter …such as marriage or other personal interest
A sheriff may serve proces only n what locations?
their own county or one directly contiguous to their own
Service of process on a foreign corp must be served on who?
Only on an in-state officer, director, or registered agent of this type of corporation
Improper service may be “cured” when
process was actually received by the person it was directed to within 1 yr except in divorce or annulment
Equitable defense: unclean hands
party seeking equitable relief must himself not been guilty of inequitable wrongful conduct related to the claim asserted
Equitable defenses: What does no availabile remedy at law mean?
party seeking equitable relief must establish that money damages would not be sufficient to place him back in a position he would be in had the breach not occurred
Equitable defenses: Hardship or Oppression
party seeking equitable relief must show that the requested relief will not cause unreasonable great hardship on other party
Equitable defenses: fraud
party may not obtain relief requested where they have made false statements of material facts in connection w the disputed K
Elements to establish temporary injunction
1) has reconized legal right 2) will suffer irreparable harm w/o an injunction, 3) balancing equities and hardship weighs in their favor, 4) likely to succeed on merits and 5) no adequate remedy at law
Factors Ct considers in granting/denying injunction
(a) Is there an adequate remedy at law?
(b) does P have a likelihood of success at trial?
(c) is harm to P if injunction is not granted greater than the harm to D if injunction is granted?
(d) does public interest weigh in favor or against an injunction?
Action in detinue/SOL
allows ct to determine who is entitled to possession of item of PP or to award damages when item cannot be returned
5 years
SOL: Fraud
2 yrs from when fraud was discovered or should have been
Can judge award attorneys fees?
No unless in actions of fraud
May a Ct permit the late filing of responsive pleading?
ct may permit this type of pleading even when time for filing has passed if the party demonstrates good cause for delay
Responsive pleadings: time it must be filed
D must file within 21 days from time D was served
When a default judgment is entered against a D who does not appear at trial, may he still present evidence as to damages?
Yes…
When may ct grant leave to amend complaint?
this type of leave is discretionary and is to be liberally granted to attain ends of justice
To appeal from GDC to CC, party must file their notice within how long?
10 days after entry of final judgment
Appeals to this ct result in brand new trial?
CC
This type of appeal allows for admission of brand new evidence, not ever presented in Ct below
Appeals to CC from GDC
This type of appeal will not be bound by evidence from ct below
GDC to CC
This type of error will not be considered on an appeal to the Ct of Appeals or SC
unpreserved errors (errors not objected to in trial ct)
What is standard for appellate review of a trial ct’s decision on a motion for summary judgment
De novo
When must a party object to the form or admissibility of evidence at trial?
@ time evidence is offered or else objection is waived
What is the proper post trial motion to file to raise errors that occurred during trial that affected a party’s substantial rights?
Motion for new trial
What is the MAXIMUM amount in controversy for a civil case to be filed in GDC
$25k
How long does a party have to repsond to written discovery requests in VA state court?
21 dats afer service of the request
How long does D have to file an answer or responsive pleaidng?
21 days after service
When can party seek sanctions for spoliation of evidence in VA state CT?
If other party intentionally or negligently destroyed or failed to preserve relevant evidence
What is the requirement for a valid FORUM SELECTION in a K under VA law?
must be
1) clear and unambiguous, and
2) enforcement must not be unreasonable or unjust
What is time limit for filing demurrer in VA state ct
21 days after service of pleading being challeneged
What is time limit for serving process on a civil D in VA state ct?
Within 1 year from date of filing complaint or action will be dismissed without prejudice
What is the rule re the tolling of the SOL during pendency of a motion for judgment? How long to file new action?
SOL is tolled during pendency of a motion for judgment.
The time to file new action is extended for 30 days after entry of final judgment on motion
When can a party seek relief from a final judgment in state court based on newly discovered evidence
21 days after judgment was entered
What is deadline for filing an answer to an amended complaint in VA state cts?
an answer to amended complaint must be filed within 21 days after service of amended complaint
For what purpose should a party move to strike pleading in VA state ct?
if it is insufficient in law, contains redunant, immaterial, impertitent or scandalous matter or is filed for an improper purpose
What is the requirement for a valid waiver of service of process in VA state Court?
A waiver of service must be in writing, signed by D and filed w COurt
Under Virginia procedural rules, counterclaims are considered
permissive, meaning a D can plead any cause of action D has against P whether or not it arises out of same transaction that is subject of P’s complaint and whether its tort or K.
For purposes of SOL, a counterclaim that arises out of STO as P’s complaint will relate back to
Date complaint was filed
A party cannot nonsuit a cause of action without the consent of the adverse party who filed the counterclaim, if
The counterclaim arises out of the STO as
The rule re obtaining permission from adverse party when nonsuiting a counterclaim that arises out of STO as adverse party’s claim does not apply if
counterclaim can remain pending for independent adjudication by the Ct
How many nonsuits does P have if he files nonsuit timely
1 as of right….Ct has discretion w additional nonsuits
Does a continuance eliminate the right to a nonsuit?
No
“Process” regarding Va rules for service includes
summons and complaint
When must D object to venue
within 21 days of service (or within the period of extension of time for filing responsive pleadings).
What is result when plea of misjoinder of parties is granted?
improperly joined party will be dismissed and case will continue against correct party
In addition to a complaint, to secure immediate injunctive relief, P should file
a motion for temporary injunction…. If complaint is not verified, P should include affidavits supporting grounds for temporary injunction
Why must P furnish bond upon the Ct granting their injunction?
to protect D if, on trial on the merits, Ct determines that the injunction should not have been granted
A demurrer asserts that a pleading does not
state a cause of action or fails to state facts upon which the relief demanded can be granted.
A demurrer can also be used to seek dismissal of an action based on
a lack of subject matter jurisdiction if the pleading reveals such a lack.
A demurrer must be in writing and
Specifically state the grounds on which the pleading is insufficient at law
When is a demurrer generally filed?
Before or At the same time as other responsive pleadings
Once an answer has been filed, a party cannot file a demurrer unless
court permits the withdrawal of the answer.
Within how many days can d file counterclaim?
21 days of P serving the defendant with their original pleading.
Does D’s counterclaim have to arise out of STO as P’s claim
No
In general, when is D’s counterclaim said to be brought for purposes of SOL?
Same time as P’s complaint
In general, when is D’s counterclaim said to be brought for purposes of SOL?
Same time as P’s complaint
If the counterclaim arises out of the same transaction or occurrence as the plaintiH’s claim, then the statute of limitations is tolled by
the commencement of the plaintiff’s action.
Nonsuit is P’s method of
dismissing their own pleading without prejudice, usually so that they may re-file it at a later time
P may file nonsuit before
1) the Court grant’s a motion to strike the pleadings, 2) the case is given to the court for decision, or 3) the case is given to the jury for deliberation.
How many nonsuit’s can P take as a matter of right?
1 against the same party in a proceeding.
Nonsuiting D’s counterclaim that arises out of STO as P’s complaint
Cannot do so unless D consents or when counterclaim is allowed to proceed independently of the nonsuited claim
If the complaint was not verified by sworn affidavit, then a motion or petition for an injunction must include
A sworn affidavit including facts justifying an injunction
Affirmative defenses must be pleaded in
Answer unless they are not dispositive of the action….
If evidence supports an instruction of the defense, it should be given to the jury irrespective of whether it was pleaded in answrr
Can SOL be raised via demurrer?
No must be plea in bar
How should failure to comply with SOL be raised?
Only as an affirmative defense in a responsive pleading
Summary judgment is based on
What is uncovered during discovery
Plea in bar covers
Any procedural bar to a claim. Including, lack of notice, sovereign immunity and SOl
A demurrer is filed to assert that a pleading
does not state a cause of action
or fails to state facts upon which the relief demanded can be granted.
A demurrer can also be filed to seek dismissal of an action based on
lack of subject matter jurisdiction if the pleading reveals such a lack.
A demurrer must specifically state
the grounds on which the pleading is insufficient at law.
How many days must D return waiver of service of process?
Within 30 days from date of request if D lives in VA or 60 days if outside Va
Exception to D must pleading affirmative defenses in answer/pre answer motion
If P’s own evidence reveals sufficient facts for reasonable juror to find D had a valid defense, then ct should allow the instruction.
Ct may set aside jury’s veridict if
verdict was unsupported by the evidence at trial…
However, if reasonable minds could differ in their conclusions of fact to be drawn from the evidence or if the conclusion is dependent on the weight to be given to the testimony, the trial judge should not exercise this power
How long to file motion to set aside judgment?
21 days after entry of final order or judgment
What are the steps to appeal a civil case from the final judgment in the Virginia Circuit Court
1) File notice of appeal w circuit court clerk’s office within 30 days of entry of final order
2) Post bond for costs with trial ct
3) Make any transcript part of the trial ct’s record by filing it within 60 days of entry of final order or file “statement of incidents of trial” within 55 days from entry of final order w notice to counsel of presenting it to judge for certification
4) file appeal brief w ct of app
For cause strikes are appropriate when
potential juror is related to a party, has any interest in case being tried or has expressed an opinion or bias in the matter
Will a case filed in wrong appellate ct be dismissed?
No, it will be transferred not dismissed
Where a juror should be stricken for cause, does the juror’s later removal through the use of a peremptory cure the error or make it harmless?
NO
When will Appellate courts consider errors not raised in trial court?
To attain the ends of justice…Which is not normal in low stakes litigation
Peremptory strikes can be used for any reason except
To discriminate against race, ethnicity, or gender
Declatory Judgment
Action designed to permit a judicial determination of a party’s rights/responsibilities before he has suffered any injury or done a wrong to another… involve disputes on the crossroads of controversy, meaning there must be more than a disagreement…SHOULD NOT BE USED WHEN ALTERNATIVE REMEDIES ARE AVAILABLE.
Bill to Quiet Title
Action in equity asking ct to try title to property…Implicit in this is the right of possession… If action at law is available then equitable action is not proper
Ejectment
legal action for court to determine who has title to property based on proponent’s strength of title not on other party’s lack of title…Implicit in this is a right of possession
Contempt of ct is appropriate when a party
WILLFULLY DISREGARDS A DIRECT CT ORDER….
generally allows for fines and incarceration as the ct deems appropriate…
Considered a punitive remedy useful for the ct to assert its authority….
spousal support entered into divorce decree by ct constitutes a ct order
Appellate court’s review of factual decisions
Clear error
Infant must bring claim by
Next friend
Court should not set aside jury’s Verdict if
Reasonable minds could differ in their conclusions of fact to be drawn from the evidence or if the conclusion is dependent on the weight to be given to the testimony
Class B permissible venue
1) where d resides or has his principal place of employment or if not an individual, where PPB is located
2) where cause of action arose
3) where D has registered office, has apppointed an agent to receive process
4) location of fact witnesses, plaintiffs or other evidence provided there is a practical nexus to the forum
5) action to partition personal P, county or city here property is physically located; where evidence of property is located
Class A preferred venue
1) VTCA actions
2) partition
3) ejectment
4) unlawful detainer
4) mandamus, prohibition, certiorari
5) actions to establish a will
6) attachment
7) distress
How long to return waiver of service of process
30 days if in state D 60 if out of state
How long does D have to file answer if he validity waived service
60 days from date request for waiver was sent or 90 days if out of state D
If D fails to comply with a request for waiver made by a P, Ct can
Impose costs incurred in effecting service on D unless good cause is shown for failure
What happens if P fails to serve D within 1 yr?
Case will be dismissed without prejudice
What kind of cases does CC have exclusive jx over
equitable relief, property disputes, wills, trusts, divorces regardless of amount in controversy
Failure to respond to a lawsuit results in
default judgment….effectively admitting claims against you, cant present evidence as to liability, can present evidence re: damages
Bill of particulars
ordered to amplify any pleading that does not provide notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case.
Does a counterclaim need to arise out of STO?
Does a Crossclaim/3rd party claim?
Counterclaim does not need to arise out of STO….
Crossclaim does
