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]
