VA Civ Pro Essay Rules Flashcards
T/F Long arm statute
Provides for specific (not general) PJ
Specific jurisdiction means that the P is suing a nonresident person or entity for something she or it has done in VA or an effect she or it has caused in VA
Thus, the claim must arise from the D’s doing one of the following
True
Who should be served in a case against a corporation?
If a corporation registers and appoints an agent, the P may service process on:
1) Registered agent or person in registered agent’s office designated in writing as person to receive service of process
2) Clerk of the VA SCC, or
3) Any corporate officer or director found in VA
Long arm statute
1) Causes tortious injury in VA by act or omission in VA
2) Causes tortious injury in VA by act or omission out of VA
- Regularly does or solicits biz in VA or
- Engages in any other persistent course of conduct from which it derives substantial revenue from goods used in VA
3) Contracts to supply services or things in VA
4) Transacts any biz in VA
5) Causing injury in VA by beach of warranty where sale was out of state
6) Domestic relations cases
Long arm statute - causes tortious injury in VA by act or omission out of VA requirements
1) Regularly does or solicits biz in VA
2) Engages in any other persistent course of conduct from which it derives substantial revenue from goods used in VA
If a corporation registers and appoints an agent, the P may service process on:
1) Registered agent or person in registered agent’s office designated in writing as person to receive service of process
2) Clerk of the VA SCC, or
3) Any corporate officer or director found in VA
Who may serve process?
A sheriff or deputy of the city or county where the process will be served and in contiguous localities
A private person may serve process, so long as the person is not a party to the action or otherwise interested in the subject matter
When can defective service be effective?
In VA state courts, any process in writing that reaches the D within one year and provides the D with notice of the case is sufficient even if defective
SOL - PI
2 years; limitations period runs from accrual of c/a (date of injury)
Venue can be challenged by
Using a motion challenging venue
What must motion challenging venue state
Why venue is improper and what place(s) would constitute proper venue
Where is venue proper for a corporate D
Where the c/a arose
Where the corporate D has registered office and has appointed an agent to receive process, or
Where D regularly conducts substantial business activity so long as case has practical nexus w forum like location of fact witnesses or evidence
Category A venue
1) Certain land actions - local actions
- Recovery, partition, or judicial sale of land; to establish boundaries to land; for unlawful entry or detainer of land (including trespass); to subject land to debt; to quiet title to land or remove encumbrances on land
2) Wills
3) Writs
4) Injunctions
Category A preferred venues - Marriage actions
Where parties last cohabitated
Where D resides
If D outside VA then where P resides
Category A preferred venues - Will contests
Where will was probated (usually residential locality at death)
Category A preferred venues - Torts
Where P resides
Where act or omission occurred
If P resides outside VA & act occurred outside VA, then in Richmond
Category A preferred venues - Attachment
Locality where estate, property, or collateral are (where locality or property is)
Category A preferred venues - Injunctions
CC for locality where judgment is / was pending
Where act is to be done or prevented
How can party a obtain dismissal if no genuine dispute of material fact exists?
Through summary judgment [VA state courts rarely grant summary judgment]
VA state courts ________ grant summary judgment
Rarely
Summary judgment is not allowed in suits for
Divorce or annulment
T/F Summary judgment cannot be used as a demurrer to test the sufficiency of allegations in the pleadings
True
Unlike federal court, when obtaining a dismissal through summary judgment (if no genuine dispute of material fact exists), a VA state court movant cannot rely on ________ as summary-judgment evidence
Affidavits
Unlike federal court, when obtaining a dismissal through summary judgment (if no genuine dispute of material fact exists), the parties must agree in order to use ________ testimony as evidence
Deposition
In VA state courts, summary-judgment evidence must appear from ________, ________, ________
The pleadings, a pretrial conference order, or an admission that the movant is entitled to judgment
If a person believes he is not a proper D, how should he seek dismissal?
A party can obtain dismissal through summary judgment if no genuine dispute of material fact exists
He will have to rely on the pleadings to obtain summary judgment unless P agrees to an early deposition or admits D was not involved
A minor can sue
In her own name by a named person as her next friend (although judgment in favor of a minor will not necessarily be disturbed for failure to sue through a next friend)
Patty Lane (Next Friend, Lucy Lane)
Patty Lane by her next friend, Lucy Lane
T/F A minor can sue in her own name “by ________, her next friend”
True
T/F A judgment in favor of a minor will not necessarily be disturbed for failure to sue through a next friend
True
A judgment in favor of a minor will not necessarily be disturbed for
Failure to sue through a next friend
A misnomer occurs when
A party intends to sue the party but makes a mistake in naming them in the lawsuit
A misjoinder results from
An excess of the parties
If a P is under a disability at the time of accrual, the limitations period does not begin until to run until
The disability is removed
Courts of no record are called
General District Courts
GDC has jurisdiction over claims based on ________, ________, and ________ if the amount or value does not exceed ________
Contract, injury to real or personal property, and recovery of specific personal property; $25,000
For claims based on contract, injury to real or personal property, and recovery of specific personal property, GDC has exclusive jurisdiction if the amount does not exceed ________ and concurrent with CC if amount of the claim exceeds ________ but does not exceed ________
$4,500, $4,500, $25,000
For claims based on ________, ________, and ________, GDC has exclusive jurisdiction if the amount does not exceed ________, and concurrent with CC if the amount of the claim exceeds ________ but does not exceed ________
Contract; injury to real or personal property; recovery of specific personal property; $4,500; $4,500; $25,000
For claims based on action for injury to the person (regardless of theory and including wrongful death and VA tort claims actions), GDC has jurisdiction if the amount does not exceed _______. Jurisdiction is exclusive if the amount does not exceed ________ and concurrent with CC if the claim exceeds ______ but does not exceed ________
$50,000, $4,500, $4,500, $50,000
T/F Service on any general partner is deemed service on the partnership and each named partner
True
Service on any general partner is deemed service on
The partnership and each named partner
Service on any ________ is deemed service on ________ and ________
General partner; the partnership; each named partner
Except as provided by statute, a D who fails to appear in person or by counsel is in default and
1) Waives all objections to the admissibility of the evidence
2) Is not entitled to notice any further proceeding in the case, except that when service is by posting; and
3) On request made in person by the P or P’s attorney, judgment will be entered for the amount appearing to the judge to be due. If relief demanded is unliquidated damages, the court will hear evidence and fix the amount thereof
A court may grant a continuance for good cause provided
All parties agree, or one party timely moves the court
Appeals lie as of right to the CC if the amount involved is more than _______
$20
A case appealed to CC is tried ________
De novo
Appeal to CC must be taken within ________ days of entry of judgment by noting the appeal in writing with the clerk of GDC, and bond must be provided and costs paid within ________ days of entry of judgment
10, 30
Appeals to the CC must be taken within ________ days of ________ by _______ in ________ with ________ of ________, and ________ must be provided and ________ paid within ________ days of ________
10; entry of judgment; noting the appeal; writing; the clerk of GDC; bond; costs; 30 days; entry of judgment
T/F Seeking a rehearing or moving for a new trial in the GDC does not modify the requirements for perfecting an appeal from the original judgment
True
________ or ________ in the GDC does not modify the requirements for perfecting an appeal from the original judgment
Seeking a rehearing; moving for a new trial
Seeking a rehearing or moving for a new trial in the GDC does not ________
Modify the requirements for perfecting an appeal from the original judgment
[Under a default action] without recourse of right to the CC, the only other avenue of appeal is to seek ________ from the ________ which it may or may not grant
Discretionary appeal of final judgment, Court of Appeals
A D who appears at a damage hearing after default may contest damages by ________, ________, and make ________
Offering evidence and objecting to evidence; cross-examine witnesses; oral arguments as to damages**
A D who fails to timely file a responsive pleading to a complaint is automatically deemed to be
“In default” without any action by the trial court
A D who fails to ________ to a ________ is automatically deemed to be _________ without _________
Timely file a responsive pleading; complaint; in default; any action by the trial court
In CC, a D who is in default may seek to be “relieved” of the default, thus allowing the case to be decided on ________ rather than the procedural error of ________
Merits; failing to file a timely responsive pleading
A D in default may file a motion for leave to file a late pleading, but whether to grant it is left to ________, so the decision will be reviewed on ________ standard on appeal
The discretion of the trial court; reviewed on an “abuse of discretion”
In CC, prior to participating in the damages hearing, a D may seek to be ________, and to move for leave to file ________
Relieved from the default; a late pleading in response to the complaint
T/F In regards to a D in default, a strong argument could be made that the finding of contributory negligence is a part of damages
True
In regards to a D in default, a strong argument could be made that the finding of contributory negligence is
A part of damages
In CC, provided the default has not yet been turned into a judgment, the standard for a motion to leave to file a late pleading is
Low: any “good cause” will justify the trial court in allowing a late response, but the trial judge has the discretion to require the D to reimburse any extra attorneys’ fees incurred by the P solely bc of the D’s delay in responding to the complaint. The trial judge will also consider any prejudice to the P
In CC, provided the default has not yet been ________ the standard for a motion to leave to file late pleading is ________ : any ________ will justify the trial court in ________
Turned into a judgment; low: any “good cause”; allowing a late response
Under a default action, without a recourse of right to the CC, the only other avenue of appeal open to a party is to seek
Discretionary leave to appeal final judgment from the Court of Appeals
In CC, a D who fails to timely file a responsive pleading to a complaint is automatically deemed to be ________ without any action by the trial court
In default
A D in default may present evidence as to ________ but not to ________
Damages, liability
In CC, a party may seek to be relieved from default for good cause provided all parties agree or one party timely moves the court but this remedy is not available in
GDC
Once a D is in default, they cannot ________ and essentially waive affirmative defenses like ________
Contest liability, contributory negligence
T/F If the final day to file under the statute of limitations falls on a non-working day, such as a weekend or holiday, the next working day will be the deadline to file
True
A ________ may not exceed the damages claimed in the ad damnum clause of the P’s complaint, and an ad damnum clause cannot be amended after a ________. However, when a D appeals, the CC is granted discretion to permit the P to amend the complaint to _______
Verdict, verdict, seek an amount in excess of the jurisdictional limit of the district court
A ________ may not exceed the damages claimed in the _______ of the P’s complaint and an ad damnum clause cannot be amended after a ________. However, when a D appeals, the CC is granted discretion to permit the P to amend the complaint to ________
Verdict; ad damnum clause; verdict; seek an amount in excess of the jurisdiction limit of the district court
A D who fails to timely file a responsive pleading to a complaint is automatically deemed to be ________ without ________
“In default”; any action by the trial court
In determining whether there is “good cause” to allow a late pleading, the court will balance ________ against ________ in allowing a late filing
The reason for the default; the prejudice to the P
In regards to a late pleading, the bar for allowing the late pleadings is
Fairly low
In regards to late pleadings, trials on
The merits are favored
Generally, a party has a right to appeal a final judgment of the CC in a civil case involving ________ or more to the VA Court of Appeals
$500 or more
When the appeal from CC to the VA Court of Appeals is of right, the appellant must ________ with ________ of the ________ no later than ________ days after _________
File a notice of appeal; the clerk CC; no later than 30; entry of judgment
The Supreme Court of VA is VA’s court of
Last resort
Appeal to the Supreme Court of VA is usually by
Petition
To appeal to The Supreme Court of VA, one must first appeal to ________ and ________ in his petition
Virginia Court of Appeals; identify his assignments of error
________ can seek summary judgment
Any party
A party may only rely on deposition testimony only upon
Agreement of the parties
A strong argument could be made that the finding of contributory negligence is
A part of damages
A P, even in a case based on default, must prove ________, and if they are found contributorily negligent, they are ________
Damages; not entitled to damages
In VA, the counterclaim is ________ never ________
Permissive, compulsory
The counterclaim need not grow out of
The same transaction and occurrence
A voluntary nonsuit is taken by a P when he, for whatever reason ________
Does not want to proceed to trial
A nonsuit must be taken by the P
Before the jury retires from the bar or, if the case is tried without a jury, before the case is submitted to the court for a decision
If the D has filed a counterclaim, cross-claim, or third-party claim, the P may not take a nonsuit
Without the D’s consent unless the counterclaim can remain pending for independent adjudication
[no consent needed if counterclaim arises out of same t/o as the claim of the party seeking to nonsuit]
If the D has filed a ________, ________, or ________, the P may not take a nonsuit without ________ unless ________ can remain pending for ________
Counterclaim; cross-claim; third-party claim; the D’s consent; the counterclaim; independent adjudication
Only ________ nonsuit as a matter of right may be taken
One
T/F 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
True
Conversion
1) An act by D interfering w P’s right to possession in the chattel
2) Intent to perform the act bringing about the interference w P’s right to possession
3) Causation; and
3) Damages (Interference serious enough in nature or consequences to warrant that D pay the full value of the chattel)
Who may bring action for conversion?
Anyone with possession or the immediate right to possession may maintain an action for conversion
Where the legal remedy of damages is unavailable or inadequate, ________ may be granted
Injunctive relief
Where the legal remedy of damages is ________ or ________, a party can seek injunctive relief by ________
Unavailable; inadequate; temporary injunction
Where the legal remedy of damages is unavailable or inadequate, a party can seek injunctive relief by
Filing a motion for a temporary injunction
Requirements for preliminary injunction
P must alleged facts showing she has a recognized legal right to the baseball cards
1) The P will suffer irreparable harm before the conclusion of the trial if the injunction is not granted
2) The harm to the P if the injunction is not granted outweighs the harm to the D if the injunction is granted
3) The P shows that he is likely to be successful on the merits; and
4) The public interest favors granting the injunction
***Irreparable harm is the most important factor. If the party seeking injunctive relief has an adequate remedy at law (e.g., money damages will adequately compensate the party), the injunction will be denied
If a temporary injunctive relief is granted, what further requirements must be satisfied?
To furnish a bond in sufficent amount to assure that if the other party wins, there will be assurance to be able to recover whatever damages & costs he suffered to the granting of the temporary injunction
T/F A court will not terminate an action on the grounds of failure to join a party without first permitting the party to attempt to join the absent party
True
A party is necessary if
1) The court cannot accord complete relief among the existing parties without the absentee
2) The absentee’s interest may be harmed if they are not joined; or
3) The absentee claims an interest that subjects a party (usually the D) to a risk of multiple obligations
Plea in bar
Affirmative defense in federal court, such as SOL or res judicata
May be raised separately, as motion to dismiss, or stated like affirmative defenses in the answer
Presents a single set of facts that, if true, would obviate the need to proceed further with the action
Demurrer
To test the legal sufficiency of an aggressive pleading
[“That the thrill of our marriage is gone” is not a proper ground for divorce in VA. A demurrer tests the legal sufficiency of the complaint and in consideration of the demurrer, the factual allegations in the complaint are assumed to be true. Assuming that the complaint’s allegation of Jack’s grounds are true, nevertheless, the demurrer should have been granted because the complaint failed to state a proper ground for the divorce]
Motion for summary judgment
There is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law
Who can move for summary judgment?
Any party
Motion to strike
To test the sufficiency of a defensive pleading
Service on individuals (in order)
1) Actual service
2) Substituted service
3) Service by posting
Actual service is
The delivery of a copy of the process to the party in person. [Actual service must be attempted before alternate methods are used]
Substituted service
If a party is not found at her usual place of abode, service may be accomplished by delivering, at the party’s usual place of abode, a copy of the process to a member of the party’s family age 16 or older and giving information concerning the nature of the process. Delivery may not be to a temporary guest or sojourner
Service by posting
If neither the party nor any qualified member of the family can be found at the usual place of abode, service may be accomplished by posting a copy of the process on the party’s front door or other apparent main entrance
Service by posting - If neither the party nor any qualified member of the family can be found at the usual place of abode, service may be accomplished by
Posting a copy of the process on the party’s front door or other apparent main entrance
A bill of review lies only to
A final order in an equitable proceeding
[A divorce action is an equitable proceeding]
T/F A 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
True
A bill of review can be brought on either of the two alternative grounds
1) Error of law apparent on the face of the record of the proceeding; and
2) Newly after discovered evidence
If bill of review is sought on the grounds of newly/after discovered evidence, leave of court to file the bill of review be first obtained
If bill of review is sought on the grounds of newly/after discovered evidence, what must be obtained?
Leave of court
When seeking to file a bill of 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:
1) The evidence was discovered after trial; and
2) The evidence is material and on another trial should produce opposite results on the merits; and
3) The evidence is not cumulative, corroborative or collateral; and
4) The evidence could not have been discovered with reasonable diligence before trial; and
5) The evidence can be produced at a new trial
[On the facts of the question, the judge abused the court’s discretion in not permitting Diane to file the bill of review and thus getting a chance to prove the elements described above]
A bill of review may be presented within
Six months of a final decree without leave of court to correct errors apparent upon the face of the record
It may be presented within six months of a final decree with leave of court as to after-discovered evidence
A bill of review must be presented within
Six months of a final decree without leave of court to correct errors apparent upon the face of the record
A bill of review may be presented within (after discovered evidence)
Six months of a final decree with leave of court as to after-discovered evidence
GDC has exclusive SMJ for claims up to and including
$4,500 exclusive of interest
There is no statutory authority for a jury in
The GDC
Only the ________ courts are authorized to conduct jury trials
Circuit Courts
Appeals from the GDC to the CC are tried de novo and evidence not offered in the GDC may, subject to the rules of evidence,
Be admitted in the CC trial
The object of detinue is to
Recover specific personal property
To bring an action for detinue, the P must have
1) An interest in the property, and
2) An right to immediate possession
An action in detinue will allow the court to determine
Who is entitled to possession or award damages where the property cannot be returned
An action in detinue will allow the court to determine ________ or ________ where the property cannot be returned
Who is entitled to possession; award damages
Elements that must be alleged and proved in an action in detinue (p/f case for recovery)
1) P has a current property right in the property
2) P must have a right to immediate possession
3) The proprty must be capable of possession
4) The property must have some value; and
5) The D must have had possession of the property prior to filing suit
A summons is not used in
GDC
Declaratory judgment
Action designed to permit one to have judicial determination of his rights and/or responsibilities before he has suffered any injury or done a wrong to another
Must involve disputes at “the crossroads of a controversy.” meaning there must be more than just a disagreement. The dispute must be at the brink of the creation of a c/a
[VA courts have held that declaratory judgment remedy, should not be used when alternative remedies are available. Based on ejectment being available, declaratory judgment action is likely to be an inappropriate proceeding]
Object of such action is to obtain declaration of right with or without consequential relief
Actual controversy must exist; action does not authorized advisory opinion by court
Declaratory judgment proceeding may either be legal or equitable claim in CC, depending on nature of claim and forms of relief sought
Unlawful detainer
The object of an unlawful entry or detainer action is to recover possession (not try title)
It is a landlord’s remedy against a tenant
[Unlawful detainer would not be a remedy that Microbrewery would want to use to obtain a ruling that it has title to the land and that the prior easement no longer allows the Railroad any claim of title]
Bill to quiet title
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
Statutory action in equity to remove cloud on title
P does not have to be in possession to uphold this action, action does not provide restoration of possession or for damages
[Microbrewery could try a bill to quiet title, but an action at law (ejectment) exists. When there is an adequate remedy at law, then equitable actions are not generally available. A bill to quiet title would not be an appropriate proceeding]
Ejectment
The object of an action for ejectment is to try title and obtain possession of a piece of land
To bring this action, P must be out of possession
To succeed, P must show a superior right to possession
[Ejectment would be an appropriate proceeding to use to bring the claim]
To appeal a civil judgment from a Virginia Circuit Court, a party must file a notice of appeal in the Circuit Court within 30 days of the judgment being appealed from and then:
File an appeal brief in the VA Court of Appeals
As of January 1, 2022, all civil appeals go first to the Virginia Court
At the end of a Virginia Circuit Court trial, when the losing party wishes to file a motion to set aside the verdict, how long do they have to do so?
Within 21 days after the entry of judgment
A potential juror can be stricken from the panel for cause if he is ________, ________, or ________
Is related to a party; has any interest in the case being tried; has expressed an opinion or bias in the matter
Virginia’s General District Courts have exclusive subject matter jurisdiction for claims up to and including:
$4,500 not including any interest and attorney’s fees demanded
The Virginia General District Courts have “[e]xclusive original jurisdic
Jim wants to appeal his personal injury case from the final judgment in the CC. List all of the things Jim must do to perfect his appeal
File a Notice of Appeal in the Circuit Court Clerk’s Office within 30 days of entry of the Circuit Court’s Final Order**
File his appeal brief in the Court of Appeals
Post a bond for costs in the trial court
Make any transcript part of the trial court’s record by filing it within 60 days of entry of the final order, or file a “statement of the incidents of trial” within 55 days from the entry of the final order with notice to counsel of presenting it to the judge for certification.
Peremptory challenges must be exercised on
Racially neutral grounds
T/F After voir dire, each side is entitled to exercise an unlimited number of challenges for cause
True
________ days is usually always the deadline when going back to the same court we are in to ask to do something or file something
21
E.g., Motion to set aside the verdict
________ days is usually deadline when we are taking a case out of the CC
30
(E.g., Filing a notice of appeal; filing a notice of removal)
The 21 day rule
After entry of a final judgment, a case “rests in the breast of the court” for 21 days. After the 21 day period, the trial court has no further jurisdiction over the case
Circuit courts retain jurisdiction to consider post-trial motions for only ________ days after entry of a final order. A court may ________, ________, or ________ its final order within that 21 day period
21; modify; suspend; vacate
Civil appeals are ________. A party who loses in the Court of Appeals may petition the ________ to hear the case
As of right; to the Virginia Supreme Court
If a petition for a civil appeal is incorrectly filed in the wrong appellate court, that court will ________
Transfer the case to the correct appellate court
Case will not be dismissed, but transferred, and relate back to when you
When a party files in the wrong appellate court, the matter cannot be ________, but must be ________ to the correct appellate court for consideration
Dismissed; transferred
When a potential juror is related to a party, has any interest in the case being tried, or has expressed an opinion or bias in the matter, he can be stricken from the panel
For cause
Where a juror should be stricken for cause, the juror’s later removal through the use of a ________ does not cure the error or make it harmless
Peremptory strike
Preservation of error
Issues (“assignments of error”) raised on appeal for the first time will not be considered by the appellate court unless the “ends of justice” exception applies
“Ends of justice” = grave and serious miscarriage of justice
________ raised on appeal for the first time will not be considered by the appellate court unless the ________ exception applies
Issues (“assignments of error)”; “ends of justice”
“Ends of jusdtice
Ends of justice =
Grave and serious miscarriage of justice
T/F When filing a notice of appeal, the event day does not count
True
New evidence cannot be presented in
Appellate courts
In appellate courts, new evidence cannot be presented. Appellate courts review
The trial in the circuit court and addresses whether the circuit judge erred
T/F Although mitigation of damages is an affirmative defense, it need not be raised in a responsive pleading if the defense is not dispositive of the action. If the evidence supports the instruction, it should be a defense to be considered by the jury
True
A plea is
A responsive pleading
The issue of failing to file within the applicable SOL can be raised only as
An affirmative defense and set forth in a responsive pleading
[And prohibits the SOL being raised by demurrer]
As of January 01, 2022, all civil appeals go first to the
VA Court of Appeals as of right. No petition is required
In PI actions, when a conservator or guardian has been appointed for an incapacitated person, the suit must be filed
Before the expiration of the applicable period of limitations or within one year after a conservator or guardian has been appointed, whichever occurs later
T/F The c/a for a breach of contract accrues when the breach occurs
True
The c/a for breach of K accrues when
The breach occurs
SOL - Defamation
1 year
SOL - Torts
2 years after c/a accrued; not when resulting damage discovered
SOL - Torts, damage of property
5 years
SOL - Fraud
2 years
SOL - Wrongful death
2 years from date of death not date of accident (but claim is barred if decedent was injured more than 2 years before death and died from those injuries without bringing suit)
SOL - Unwritten/oral K
3 years after c/a accrued
SOL - Unlawful detainer
3 years
SOL - Written, non-UCC
5 years
SOL - Goods
4 years
SOL - Property damage for sales covered by UCC
4 years
SOL - Property damage for sales NOT covered by UCC
5 years
SOL - Written K [signed by party to be charged]
5 years after the c/a accrued
SOL - Written K [not signed by party to be charged]
3 years after c/a accrued
SOL - Partnership actions
5 years
SOL - Ejectment (land possession)
5 years
SOL - Unlawful detainer (land possession)
3 years
VA permits the introduction of character evidence in the form of reputation testimony for which purposes?
Both substantive and impeachment purposes
VA does not permit the introduction of character evidence in the form of opinion testimony for ________ or ________ purposes
Impeachment; substantive
P’s burden of persuasion - Conversion
Preponderance of evidence
P’s burden of persuasion - Fraud
Clear & convincing
P’s burden of persuasion - IIED
Clear & convincing
P’s burden of persuasion - Punitive damages
Clear & convincing
T/F A cross-claim must involve subject matter growing out of a matter pleaded in the complaint
True
T/F A cross-claim generally must be filed within 21 days of service on the D unless the court grants additional time
True
Can the CC consider a juror’s testimony regarding another jury that was made during jury deliberations stating the D was liable bc she was Chinese in a ruling on a request made by the D to set aside the verdict?
Yes, bc the statement exhibits an overt racial/national origin bias
T/F While a juror generally may not testify about any statement made or incident that occurred during jury’s deliberations, VA 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
True
In GDC, when must the initial suit papers for 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 docket
T/F 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
[Here, since the employee is challenging whether the counterclaim states a cause of action, the employee should make this challenge by a demurrer]
True
T/F 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
While it raises the same type of sufficiency issue as a demurrer, it is used only against a defensive pleading, not counterclaims.
True
T/F 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
True
T/F 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
True
T/F Claims based on UCC contracts for the sale of goods must be brought within four years
The parties may agree to reduce the four-year period to not less than one year, but cannot agree to extend it to more than four years
True
T/F An unlawful detainer action is an action at law by which the owner of real property can regain possession from a person who is in wrongful possession of the property. The most common use is by landlords seeking to evict a tenant
True
T/F Ejectment is a legal claim to try title to land and to establish that the movant is the holder of title to the land
[If the landlord brought an action for ejectment and won, the remedy would be a writ of possession from the court directing the sheriff to deliver possession to the plaintiff. This may indirectly lead to the eventual removal of the tenant from the property, but an ejectment action alone would not be sufficient]
True
T/F Distress is an in rem law claim by a landlord for recovery of rent by proceeding against the tenant’s tangible personal property. It would not result in the removal of the tenant from the property
True
T/F For a personal injury action, the cause of action accrues, and the statute of limitations begins to run, when the injury is received, regardless of when it is discovered
True
For a personal injury action, the c/a accrues, and the SOL begins to run, when the injury is ________ regardless of when it was ________
Received; discovered
T/F When a person entitled to bring an action is an infant or is incapacitated at the time the cause accrues, the period of limitations generally does not start to run until the disability is removed
Virginia courts recognize an exception for medical malpractice claims known as the continuous treatment rule. Under this 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
[Since Defendant continued to monitor Plaintiff’s recovery after Plaintiff turned nine years old, this rule likely applies and the two-year statute of limitations did not begin to run until Defendant stopped treating Plaintiff]
[Consequently, since Plaintiff’s claim was filed on his eleventh birthday, it was filed before the expiration of the two-year statute of limitations]
True
T/F While generally the statute of limitations does not begin to run against an infant until the infant reaches 18, there is a special rule for medical malpractice claims against a health care provider
If the infant is at least 8 years old at the time of the occurrence of the act of malpractice, the claim must be brought within two years of the date of the last act or omission giving rise to the cause of action
[While this two-year rule does apply to Plaintiff, because of the continuing treatment rule the statute of limitation does not begin to run until the termination of the patient’s treatment]
True
T/F Virginia courts recognize an exception for medical malpractice claims known as the continuous treatment rule. Under this 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
True
Continuous treatment rule exception
Under this 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
Which of the following would a party file to compel production of a document that is the subject of the complaint yet is not attached to the complaint?
Motion craving oyer
In which court does the Uniform Enforcement of Foreign Judgment Act require a foreign judgment to be filed?
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
T/F A demurrer is an appropriate responsive pleading to challenge the misjoinder of causes of action, but not the misjoinder of parties
Instead, a party seeking to challenge his joinder to an action should file a motion to drop him as a party
True
A notice of appeal must be filed within 30 days of entry of the final order, and that period is not interrupted by the filing of a motion for a new trial or a motion to vacate
True
T/F The earrings are misplaced (i.e., mislaid) property. Misplaced property is property that reasonably seems to have been intentionally placed in a particular location, but then appears to have been forgotten. The owner of the place where the misplaced property was found has the right to possess the misplaced property over all but the true owner. Consequently, the owner of the store has the right to possess the earrings
True
Defense of Unclean hands
Under the doctrine of unclean hands, a party seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct, and the wrongful conduct must relate to the claim asserted
Specific performance is what kind of a remedy?
An equitable remedy, which compels the performance of a contract in the precise terms agreed upon, or such a substantial performance as will do justice between the parties under circumstances of the case
[Colin would need to show that there is no adequate remedy available at law. Paul should assert that monetary damages could be awarded]
Defense of hardship or oppression
A court of equity will not decree specific performance of the agreement where it would entail great hardship, and
the hardship was due, in some measure, at least, to the conduct of the other party
To rescind a K based on fraud
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
To rescind a K based on fraud, there must be a ________ positively made, not mere ________
False statement of facts; erroneous opinions
Motion to intervene (intervention) requires
Leave of court, and the court has considerable discretion in granting or refusing such a request
Does a motion to intervene require leave of court?
Yes, motion to intervene requires leave of court, and the court has considerable discretion in granting or refusing such a request
T/F Granting of an injunction is an extraordinary remedy and rests upon the discretion of the court
True
Who is entitled to possession or award damages where the property cannot be returned
A D who does not file a responsive pleading is automatically
In default without any action by the trial court
T/F A D who has fallen into default is not entitled to notice of any further proceedings, except that notice must be given to the D’s counsel of record, if any
True
Obtaining default judgment
A P must apply to the trial court by filing a motion for the entry of default judgment
If damage amount is liquidated, a judgment will be entered
If damage amount is unliquidated, some CCs within VA will grant “a default judgment as to liability” and determine damages at a later hearing, while other trial courts withhold granting a judgment until the damage hearing has been held
A D who has defaulted and learns of the scheduled damage hearing and chooses to attend and participate may
1) Object to P’s damage evidence
2) Cross-examine P’s damage witnesses
3) Offer evidence on damages
4) Participate in jury selection, if a jury will hear the damage issues
5) Submit jury instructions on damages
6) Make oral argument on the damage issues
T/F A D in default may seek to be “relieved of default,” thus allowing case to be decided on the merits rather than the procedural error of failing to file a timely responsive pleading
True
Defaults not yet turned into judgment
A D whose responsive pleading was not timely filed is “in default”
He may make a motion to leave to file a late pleading in response to the complaint. Standard is low: any good cause will justify the trial court in allowing a late response
Relief from default judgment
During the period allowed by Rule 1:1 for modification, vacation, or suspension of a judgment, the court may by written order relieve a D of default judgment
The trial court is to consider several factors:
i) Extent and causes of the D’s delay
ii) Whether service of process and actual notice of claim were timely provided to D; and
iii) Effect of delay upon P
[Action in CC, partnership may have good cause to seek relief from default judgment on grounds that Lighthouse Bank was being disingenuous by failing to notify court of parties’ agreement for a continuance]
Once 21 days have run following the entry of the default judgment, the judgment will be set aside only when there is
Fraud on the court
With few exceptions, a D who fails to appear in person or by counsel in a GDC proceeding is in default,
Waives all objections to the admissibility of evidence, and is not entitled to notice of any further proceeding in the case
On request made by the P’s attorney, judgment will be entered for the amount appearing to the judge to be due
If relief demanded is unliquidated damages, the court will hear evidence and fix the amount thereof
Nevertheless, a court may grant a continuance for good cause provided all parties agree or one party timely moves the court
T/F Action in CC, partnership may have good cause to seek relief from default judgment on grounds that Lighthouse Bank was being disingenuous by failing to notify court of parties’ agreement for a continuance. However, GDC does not offer such opportunity. Moreover, even were the parties in agreement, a party must still notify the court of the agreement to obtain the continuance
True
Under VA law, a D in CC whose responsive pleading was not timely filed is automatically
“In default”
T/F Under VA law, a D in CC whose responsive pleading was not timely filed is automatically “in default,”
However, a D who is in default may seek to be “relieved” of default, thus allowing the case to be decided on the merits rather than on the procedural error of failing to file a timely responsive pleading
Provided the default has not yet been turned into a judgment, the standard for a motion for leave to file a late pleading is low: any “good cause” will justify the trial court in allowing a late response, but the trial judge has discretion to require the D to reimburse any extra attorneys’ fees incurred by P solely because of the D’s delay in responding to the complaint. The trial judge will also consider any prejudice to P
True
In determining whether there is “good cause” to allow a late pleading, the court will balance
The reason for he default against the prejudice to the P in allowing a late filing
Important to note: trials on the merits are favored, and
T/F A judge’s ruling on a demurrer is a ruling of law, not fact, and the appellate court will review that ruling de novo, without any deference to the lower court’s ruling
True
General appearance
Any conduct that engages in merits of the case
[D must raise lack of PJ before doing anything that engages the merits. If she waives PJ at the same time (or after) engaging the merits, it is waived]
[D does not waive PJ if she raises it at the same time as a motion objecting to venue and for transfer; she does waive PJ if she raises it after making the motion objecting to venue]
January 21, 2022 D files answer to complaint. After filing answer, D conducts discovery. March 1, 2022 D files motion to dismiss for lack of PJ - did waive its right to object to PJ?
Yes, by entering general appearance in the case by filing an answer and conducting discovery
[However, discovery, if ordered by the court to adjudicate any objection to PJ, does not of itself, waive PJ]
T/F D must raise lack of PJ before doing anything that engages the merits. If she waives PJ at the same time (or after) engaging the merits, it is waived
True
[Filing answer + discovery = general appearance]
T/F D does not waive PJ if she raises it at the same time as a motion objecting to venue and for transfer; she does waive PJ if she raises it after making the motion objecting to venue
True
Service-related defenses are waived if the D makes a general appearance (motion to quash process - argue service of process not proper)
True
T/F It is OK to file the motion to quash process (challenging service of process) simultaneously with a pleading responding to the merits
True
Special appearance used to
Challenge PJ
Examples of general appearance
Answer, demurrer, special pleas, counterclaim, cross claim, third party claim, conducting discovery
[D is sued and responds with an answer. D has waived the defense of lack of PJ]
Motion to dismiss for venue is
Not proper
T/F Venue is not jurisdictional in VA and no case shall be dismissed on that basis
True
T/F A demurrer challenges the legal sufficiency of a complaint (or counterclaim, crossclaim or third-party claim)
[Here, the complaint is filed by an improper party and cannot legally stand]
True
T/F Every action for wrongful death must be filed in the name of the PR, not the deceased
Styled: [PR full name], personal representative of the estate of [deceased] v. [defendant]
True
Cody Coleman, deceased v. Togo Ticketing should be brought instead, as:
Brenda Coleman, personal representative of the estate of Cody Coleman v. Togo Ticketing
T/F In a wrongful death suit, if the complaint is filed by an improper party, it is a legal nullity
True
Maximum number of depositions
No rule limit on number of depositions
[In federal court, you cannot take more than 10 depositions or depose someone twice, w/o court permission]
T/F Deposition testimony is subject to the rules of evidence
True
T/F A case will never be dismissed for venue
True
Can a CC rule properly on Sam’s motion to compel arbitration?
Yes
A provision in a written K to submit disputes to arbitration is enforceable and either party, on the other parties refusal to arbitrate, may make an application to the court and the court shall order the parties to proceed with arbitration
[The issue that formed the dispute fell under the arbitration clause in the property settlement agreement]
T/F A provision in a written K to submit disputes to arbitration is enforceable and either party, on the other parties refusal to arbitrate, may make an application to the court and the court shall order the parties to proceed with arbitration
True
Private nuisance
Requires an action that unreasonably interferes with P’s use and enjoyment of land in a way unique to P
[To obtain injunctive relief, Roy would not only have to prove the existence of a nuisance, but also the inadequacy of a remedy at law, which he should be able to do]
Doctrine of unclean hands - a party seeking equitable relief must himself not have been guilty of
Inequitable or wrongful conduct
[Erection of Jack’s fence was prompted by the installation of floodlights by Roy that substantially interfered with Jake’s use and enjoyment of his own home. A defense of unclean hands under the facts of this case should succeed]
What form of action must you file to initiate the process of obtaining pretrial recovery of personal property?
Pre-trial seizure in detinue
What must you plead to properly state P’s claim for recovery to obtain pretrial recovery of personal property? (Pre-trial seizure in detinue)
1) Kind, quantity, and value of property
2) Basis of P’s claim of entitlement to property; and
3) Alleging one or more of grounds prescribed in pretrial seizure state
a) Principal D either is foreign corp or is about to remove himself or property from state; or
b) Property will be sold, removed, secreted, destroyed, or materially damaged if left in D’s possession
Who should be named in an action for pre-trial seizure in detinue?
Person in possession of property along with any other persons claiming property
[Alexander; Saudi dealer]
T/F The statute of limitations on a K claim brought in VA on a K governed by the laws of another state, will be the shorter of the two states’ statutes
True
Leave to amend the complaint shall be
Liberally granted in furtherance of the ends of justice
Any pleading shall be invalid unless it is signed by
Local counsel
A pleading must be signed by either a
Pro se litigant or at least one attorney of record in his individual name
T/F A VA attorney cannot authorize an out of state attorney to sign [VA attorney’s] name to the pleading
True
T/F CC’s are granted SMJ in civil cases where the amount sued for is $100 or more except when the subject matter is assigned to some other tribunal
True
Laches (equitable remedy)
Unreasonable delay in bringing suit; prejudicing P or D
[The facts do not show any prejudice to Jane bc of how long Sam waited to file suit. Although she spent 50k renovating her old office building, Sam told her from the outset, that he planned to hold her to the deal and he also tried to find another buyer during that 20 month period before he filed suit]
Laches (equitable remedy) - “equity follows the law”
Equity follows the law premise argues that in trying an equitable claim, if there’s an applicable SOL (i.e., contract, the court will apply the SOL to the issue of the timeliness of the claim and that would mean a 5 year statute of limitation for a written K]
Specific performance is
An equitable remedy
[Court will likely deny Sam’s prayer for specific performance because Jane’s performance is excused by failure of the condition]
T/F Where money damages are inadequate, a court may grant the equitable remedy of specifically enforcing a K
True
A court may grant specific performance in equity if:
1) There is a valid K between the parties that it itself is not inequitable
2) Specific performance is a practical form of relief in the circumstances, and
3) There was mutual performance
Purchasing in good faith is not a good defense where the property is
Stolen property
T/F Detinue is an action at law
True
Is detinue an action at law or equity?
At law
T/F Laches for detinue - If laches can be a defense to this type of action, laches would not apply bc on the facts, Columbia filed suit shortly after learning of where the sword was
True
Laches requires
1) Knowledge of rights
2) Significant delay, and
3) Prejudice to D
T/F Objection to SMJ may be made by plea or motion, or by the court on its own motion at any stage of a c/a, even in appellate court
True
T/F GDC grants the authority, on motion made within 30 days from the judgment, to, within 45 days of the judgment, to reopen the matter
True
T/F 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
[P’s counsel, in GDC, failed to tell the Court that he’d had conversation with the D’s counsel. Here, the fact are more egregious bc there was evidence that the parties had agreed to a continuance and P’s counsel had not disclosed this
The court should vacate the judgment]
True
