VA Civ Pro Flashcards
What are the statutory classes of beneficiaries who are entitled to recover for a wrongful death?
(In successive order; no one can is entitled to compensation where a member of the previous class is alive)
- Spouse (not divorced), children (including legally adopted), or children of a deceased child;
- Parent, surviving siblings, or half-siblings
[list not nearly complete.]
[F22]
SOL for breach of contract
3 years - unwritten or written and unsigned by the party to be charged
5 years - written and signed by party to be charged
4 years - UCC sale of goods
[F22]
SOL for defamation
1 year
[F22]
A party gets ___ nonsuit ___, until…
One; as a matter of right.
…the jury retires, the action is submitted to the court for decisions, or a motion to strike evidence has been granted.
[F22]
The ___ has concurrent jurisdiction with Circuit Court over custody and child support orders.
Juvenile & Domestic Relations District Court
[J22]
After a Juvenile Court issues a custody or support, it is divested of jurisdiction when a party…
…files a circuit court suit for divorce asking for custody and support to be decided but only after a hearing is set by the circuit court for a date certain or the matter is on the motions docket to be heard within 21 days of filing.
The Juvenile Court continues to have jurisdiction to enforce its valid orders prior to the entry of a conflicting order of the circuit court.
[J22]
Contempt is defined as…
…an act in disrespect of the court or its process, or which obstructs the administration of justice.
It is within the broad discretion of the court whether to exercise its contempt powers. [J22]
A civil appeal from a general district court must take place within…
10 days. [J22]
A general district court may reopen a matter within ___, on a motion made within ___.
45 days; 30 days. [J22]
So long as the motion is made within ___ of the date of the judgment, the Court can vacate the judgment on the ground of fraud on the Court.
2 years. [J22]
A defaulting party ___ participate in the default judgement entry and damages hearing.
Can.
The court may allow leave to file late responsive pleadings. [J22]
if a party against whom a request for admission…
…does not respond within 21 days after service of the request with a denial, the matter is taken as admitted, it’s a conclusively established admission unless the court permits withdrawal or amendment of the admission. [F15]
A bill of review…
…lies only to a final order in an equitable proceeding. Filed within 6 months of the entry of the final order.
A bill of review can be brought on either ground: [1] error of law apparent on the face of the record of the proceeding; and [2] newly discovered evidence.
If the bill of review is sought on the grounds of newly 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 discovered evidence, the moving party should allege, and be prepared to prove:
[i] 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 be produced at a new trial.
[J15]
As to equity causes of action only, a party can seek review of final decree for up to 6 months after entry. (This trumps the 21-day “breast of the court” rule.) With a bill of review, a party can file, without leave of court, to correct errors apparent on face of record. With leave of court, a party can file based on new evidence.
Service of process hierarchy
(1) Personal (actual) service, (2) substituted service, (3) posted service
Substituted service:
-served at D’s usual abode
-on member of D’s family who is at least 16 yo & not a guest or temporary sojourner, by explaining the purpose of the service.
Posted service:
-Post a copy of process on D’s front door;
-Mail a copy of process to D at least 10 days before taking default judgment
- (CC only) Explain to D that P may seek default judgment 10 days later
-Certify to the clerk that mailing took place
[J15]
Summons in GDC
While a plaintiff can prepare her own complaint, or notice of motion for judgment, in GDC, there is no summons used in GDC… Only the Circuit Court uses the “summons” [F16]
Category A venue:
- Local Actions (land; proper where any part of land lies)
- Wills (where probate happened or can happen)
- Writs (where original proceeding is)
- Injunctions:
* the subject proceeding or judgment is pending
* was rendered, or
* where the subject act is to be done,
* is being done, or
* is apprehended to be done. [F16]
Category B venue
- Where D resides or principal place of employment
- Where D is incorp./PPB
- registered office/office of agent
- location of witnesses
- D’s substantial business activity (must be practical nexus to the forum including location of fact witnesses, plaintiffs, or other evidence to the action)
- Where COA arose [F16]
What must court find for transfer of venue?
Good Cause.
To determine good cause: the court weighs (1) plaintiff’s choice of forum against things like (2) agreement of parties, (3) avoidance of substantial inconvenience to parties or witnesses, (4) delay in party’s seeking transfer, etc. The decision about transfer is vested in the court’s discretion. [F16]
Forum non conveniens?
When might a court find transfer for forum non conveniens?
If (1) the cause of action accrued out of state, (2) is brought by a non-resident of Virginia, and (3) there is a more convenient venue outside Virginia, a court might dismiss without prejudice.
The court must also find (1) good cause and (2) that the other court has jurisdiction.
The court may condition grant on stated conditions (e.g., that D not raise certain defenses). [F16]
In an appeal from GDC, may P amend its complaint to exceed $25,000?
Only if D is the party appealing. Court’s discretion to allow. [F16]
Detinue requires alleging and proving the following elements:
[1] the plaintiff has a current right in the property; [2] the plaintiff has a right to immediate possession; [3] the property is capable of possession; [4] the property has value; [5] and the defendant had possession of the property prior to filing suit. [J16]
Ejectment
an established action at law for trying TITLE to land. The plaintiff must recover on the strength of her own title, not on the lack of title in the defendant. The action is not designed to resolve merely possession, though inferentially by resolving a party’s title, it does allow that party to exercise possession. [J17]
Bill to quiet title.
an equitable action employed to have the court determine title to property. Such a suit does not require alleging possession and only inferentially determines possession by determining who has title.
When there is an adequate law remedy, then equitable actions are not generally available. [J17]
Unlawful detainer.
a law claim that tries solely right to possession of real estate, not who holds title. The action is used typically to recover possession from either (1) a defendant who unlawfully gained possession, or (2) the defendant had lawful possession but lost that right (e.g., by defaulting on a lease). [J17]
Declaratory judgment
A judicial determination of rights and/or responsibilities before suffering any injury or doing wrong to another; must involve disputes at “the crossroads of a controversy” (there must be more than just a disagreement). The dispute must be at the brink of the creation of a cause of action.
This remedy should not be used when alternative remedies are available. [J17]
lis pendens is not to be filed unless…
…the action on which it is based seeks to establish an interest by the filing party in the real property. [J17]
When a party defaults they admit…
…liability and negation of affirmative defenses. This is true even where the court finds the affirmative to be true as a matter of law. [F17]
A defaulting party ___ offer evidence of damages.
May.
They may also object to evidence of damages. [F17]
An appeal from a decision of the juvenile and domestic relations court judge should be taken to…
…the Circuit Court in the same jurisdiction. [F17]
Sanctions for motions
The signature of an attorney or party constitutes a certificate 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.
If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.
If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney’s fee. [J18]
In Virginia state court, objection to PJ is waived if…
…the defendant makes a general appearance, i.e., any conduct that engages the merits of the case.
Must make special appearance instead (can be motion to dismiss for PJ). [J18]
The correct caption for a suit on behalf of a minor is…
by next friend
ex. Patty Lane, a minor, who sues by her next friend, Lucy Lane, Plaintiff v. Debbie Jones, Defendant. [J18]
Misnomer v. Misjoinder
Misnomer is wrong name, misjoinder is wrong party. [J18]
Statute of limitations must be brought…
as an affirmative defense in a responsive pleading (plea in bar/special plea; answer) but not a demurrer, motion to quash process, or motion to strike.
Failure to plead the SOL constitutes a waiver of that affirmative defense. [J20]
Responsive pleadings must be filed within…
21 days of service of process. [J20]
Must an affirmative defense (ex. mitigation of damages) be raised in a responsive pleading?
Only if it is dispositive of the action. [J20]
When may a party file responsive pleadings late?
A trial court is given the discretion to permit the late filing of responsive pleadings. [J20]
A ruling of law is reviewed…
de novo. [J20]
For an order to be appealable, it must be…
…a final order.
E.g., dismissing a complaint. [J20]
How to appeal a general district court final judgement?
File a notice of appeal at the GDC within 10 days and post bond and pay writ tax in the GDC within 30 days of judgment (10 days, however, if unlawful detainer case).
(Rehearing at GDC does not extend time limits.)
Counting starts the day after the judgement (the event day) and where it ends on a Sunday, notice can be followed the next day. [F19]
After a trial is appealed from GDC, the circuit court appeal conducts the new trial…
de novo. [F19]
Can a party present new evidence on appeal?
No. [F19]
A party is not a necessary party if an existing party can…
…adequately represent its interests. [F19]
(see “nonjoinder”)
[Law changed in 2022] Appeal from a circuit court civil judgement ___ a matter of right and goes to ___.
Is; court of appeals.
Brief not petition. [F20]
Statutes of limitations are tolled for…
…infancy; unsound mind. [F20]
A statute of limitations defense is raised by what kind of filing?
A special plea / plea in bar. [F20]
A party wishing to preserve an objection must…
…make timely objection and state the grounds for the objection at the time of the Court’s ruling.
If objection made before ruling, it need not be made again after ruling to be preserved. [F20]
Generally, a ruling on a motion for summary judgement may not consider ___.
discovery depositions.
One exception is if the parties agree on doing so. [F20]
[F15] 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.
The statute of limitations for fraud is…
2 years.
Fraud accrues when P becomes aware of or should have become aware of the fraud. [F20]
The general rule in Virginia is that, in the absence of a statute or contract to the contrary, a court ___ award attorneys’ fees to the prevailing party.
May not.
Exception for fraud (court’s discretion). [F20]
Laches requires…
…knowledge of rights, significant delay, and prejudice to the defendant.
Equitable defense. Court’s discretion. [F20]
Doctrine of unclean hands
…a party seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct that is related to the claim. [J21]
Elements for specific performance of a contract
-the contract at issue is enforceable;
-all conditions precedent to performance have been satisfied;
-the contractual terms at issue are sufficiently definite to be enforced by the court;
-there is no adequate remedy at law;
-the defendant is able to perform or the performance can be abated; and
-it would be fair (equitable) to specifically enforce the contract. [J21]
A court of equity will not decree specific performance of the agreement where it would entail great…
…hardship due to the conduct of the other party. [J21]
To rescind a contract based on fraud…
…there must be a false statement of facts, positively made, not mere matters of erroneous opinions.
A concealment to afford ground of rescission for fraud must be a willful suppression of such facts in regard to the subject–matter of the contract as the party making it is bound to disclose. [J21]
A party seeking to prevent by injunction the disposition of property they believe to be their own by a pending lawsuit should…
…file a motion to intervene in the case.
Intervention requires leave of court, and the court has considerable discretion in granting or refusing such a request. [J21]
A temporary injunction requires:
-A legal right
-irreparable harm
-balance of equities weighs in favor of injunction
-likely to succeed on the merits
-exigent circumstances
-no adequate remedy at law
extraordinary remedy; rests upon the discretion of the court; will not be awarded unless court is satisfied of Susie’s equity. [J21]
A sheriff may only serve the summons and complaint in…
…their county/city or in a contiguous county/city. [F21]
Process 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. [F21]
A foreign corporation which has properly registered to do business in Virginia may be served on…
…any officer, director, or registered agent of the foreign corporation. [F21]
[J16:] manager is not proper.
Improper service may be forgiven where…
…D actually receives process in a timely manner (within a year).
Does not apply to divorce and annulment. [F21]
SOL for personal injury
2 years. [F21]
[F16] day of the injury doesn’t count, if period ends on a weekend, a party has until the next working day to file.
Where a case does not qualify as a category A venue case, venue is proper where…
either of the defendants resides, where a defendant has appointed a registered agent to receive process, or where the cause of action arose. [F21]
A defendant must object to this venue within ___ days (or within the period of extension of time for filing responsive pleadings).
21 days.
D must also set forth where he believes venue to be proper. [F21]
[F16:] Motion should be to transfer, not to dismiss.
A demurrer…
…tests the legal sufficiency of the complaint (or counterclaim/crossclaim/third-party claim). [F21]
[J19] 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.
[J20] The standard is whether, taking the facts alleged in the Complaint as true and viewed in the light most favorable to the plaintiff, a cause of action has been stated.
Where a party is an improper defendant, they should…
…file a plea of misjoinder. [F21]
How to garnish?
21 days after judgement, file a Suggestion in Garnishment, that requests the Clerk’s Office of the court to issue a writ of execution and garnishment on the parties’ bank account. [F21]
A minor who ostensibly enters into a contract can…
…either honor the deal or void the contract.
Upon reaching age 18, he must act promptly to void the contract. [F21]
An unenforceable contract may still be upheld under…
…quantum meruit.
Where service is performed by one, at the instance and request of another….
Damages amount to the reasonable value of the work performed, less the compensation received for that work. [F21]
