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VA Civ Pro > VA Civ Pro Essay Rules > Flashcards

VA Civ Pro Essay Rules Flashcards

1
Q

Who may serve process?

A

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

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2
Q

Who should be served in a case against a corporation?

A

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

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3
Q

When can defective service be effective?

A

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

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4
Q

SOL - PI

A

2 years; limitations period runs from accrual of c/a (date of injury)

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5
Q

Venue can be challenged by

A

Using a motion challenging venue

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6
Q

What must motion challenging venue state

A

Why venue is improper and what place(s) would constitute proper venue

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7
Q

Where is venue proper for a corporate D

A

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

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8
Q

How can party a obtain dismissal if no genuine dispute of material fact exists?

A

Through summary judgment [VA state courts rarely grant summary judgment]

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9
Q

VA state courts ________ grant summary judgment

A

Rarely

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10
Q

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

A

Affidavits

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11
Q

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

A

Deposition

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12
Q

In VA state courts, summary-judgment evidence must appear from ________, ________, ________

A

The pleadings, a pretrial conference order, or an admission that the movant is entitled to judgment

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13
Q

If a person believes he is not a proper D, how should he seek dismissal?

A

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

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14
Q

A minor can sue

A

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)

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15
Q

Patty Lane (Next Friend, Lucy Lane)

A

Patty Lane by her next friend, Lucy Lane

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16
Q

T/F A judgment in favor of a minor will not necessarily be disturbed for failure to sue through a next friend

A

True

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17
Q

A misnomer occurs when

A

A party intends to sue the party but makes a mistake in naming them in the lawsuit

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18
Q

A misjoinder results from

A

An excess of the parties

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19
Q

If a P is under a disability at the time of accrual, the limitations period does not begin until to run until

A

The disability is removed

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20
Q

Courts of no record are called

A

General District Courts

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21
Q

GDC has jurisdiction over claims based on ________, ________, and ________ if the amount or value does not exceed ________

A

Contract, injury to real or personal property, and recovery of specific personal property; $25,000

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22
Q

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 ________

A

$4,500, $25,000

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23
Q

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 ________

A

$50,000, $4,500, $4,500, $50,000

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24
Q

T/F Service on any general partner is deemed service on the partnership and each named partner

A

True

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25
Q

Except as provided by statute, a D who fails to appear in person or by counsel is in default and

A

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

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26
Q

A court may grant a continuance for good cause provided

A

All parties agree, or one party timely moves the court

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27
Q

Appeals lie as of right to the CC if the amount involved is more than _______

A

$20

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28
Q

A case appealed to CC is tried ________

A

De novo

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29
Q

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

A

10, 30

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30
Q

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

A

True

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31
Q

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

A

Discretionary appeal of final judgment, Court of Appeals

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32
Q

A D who appears at a damage hearing after default may contest damages by ________, ________, and make ________

A

Offering evidence and objecting to evidence, cross-examine witnesses, and make oral arguments as to damages

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33
Q

A D who fails to timely file a responsive pleading to a complaint is automatically deemed to be

A

“In default” without any action by the trial court

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34
Q

In CC, a D who is in default may seek to be “relieved” of the default, thus

A

Allowing the case to be decided on the merits rather than the procedural error of failing to file a timely responsive pleading

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35
Q

A D in default may file a motion for leave to file a late pleading, but whether to grant it is left to

A

The discretion of the trial court, so the decision will be reviewed on an “abuse of discretion” standard on appeal

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36
Q

In CC, prior to participating in the damages hearing, a D may seek to be ________, and to

A

Relieved from the default; move for leave to file a late pleading in response to the complaint

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37
Q

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

A

True

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38
Q

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

A

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

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39
Q

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

A

Discretionary leave to appeal final judgment from the Court of Appeals

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40
Q

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

A

In default

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41
Q

A D in default may present evidence as to ________ but not to ________

A

Damages, liability

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42
Q

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

A

GDC

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43
Q

Once a D is in default, they cannot ________ and essentially waive affirmative defenses like ________

A

Contest liability, contributory negligence

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44
Q

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

A

True

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45
Q

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 _______

A

Verdict, verdict, seek an amount in excess of the jurisdictional limit of the district court

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46
Q

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

A

“In default”

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47
Q

In determining whether there is “good cause” to allow a late pleading, the court will balance

A

The reason for the default against the prejudice to the P in allowing a late filing

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48
Q

In regards to a late pleading, the bar for allowing the late pleadings is

A

Fairly low

49
Q

In regards to late pleadings, trials on

A

The merits are favored

50
Q

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

A

$500 or more

51
Q

When the appeal from CC to the VA Court of Appeals is of right, the appellant must

A

File a notice of appeal with the clerk of the CC no later than 30 days after entry of judgment

52
Q

The Supreme Court of VA is VA’s court of

A

Last resort

53
Q

Appeal to the Supreme Court of VA is usually by

A

Petition

54
Q

To appeal to The Supreme Court of VA, one must first appeal to ________ and ________ in his petition

A

Virginia Court of Appeals; identify his assignments of error

55
Q

________ can seek summary judgment

A

Any party

56
Q

A party may only rely on deposition testimony only upon

A

Agreement of the parties

57
Q

A strong argument could be made that the finding of contributory negligence is

A

A part of damages

58
Q

A P, even in a case based on default, must prove ________, and if they are found contributorily negligent, they are ________

A

Damages; not entitled to damages

59
Q

In VA, the counterclaim is ________

A

Permissive, never compulsory

60
Q

The counterclaim need not grow out of

A

The same transaction and occurrence

61
Q

A voluntary nonsuit is taken by a P when he, for whatever reason ________

A

Does not want to proceed to trial

62
Q

A nonsuit must be taken by the P

A

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

63
Q

If the D has filed a counterclaim, cross-claim, or third-party claim, the P may not take a nonsuit

A

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]

64
Q

Only ________ nonsuit as a matter of right may be taken

A

One

65
Q

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

A

True

66
Q

Conversion

A

1) An act by D interfering with P’s right of possession in the chattel

2) Intent

3) Causation

4) Damages (interference serious enough in nature or consequences to warrant that D pay the full value of the chattel)

67
Q

Who may bring action for conversion?

A

Anyone with possession or the immediate right to possession may maintain an action for conversion

68
Q

Where the legal remedy of damages is unavailable or inadequate, ________ may be granted

A

Injunctive relief

69
Q

Where the legal remedy of damages is unavailable or inadequate, a party can seek injunctive relief by

A

Filing a motion for a temporary injunction

70
Q

Requirements for preliminary injunction

A

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

71
Q

If a temporary injunctive relief is granted, what further requirements must be satisfied?

A

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

72
Q

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

A

True

73
Q

A party is necessary if

A

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

74
Q

Demurrer

A

To test the legal sufficiency of an aggressive pleading

75
Q

Motion to strike

A

To test the sufficiency of a defensive pleading

76
Q

Service on individuals (in order)

A

1) Actual service

2) Substituted service

3) Service by posting

77
Q

Actual service is

A

The delivery of a copy of the process to the party in person. [Actual service must be attempted before alternate methods are used]

78
Q

Substituted service

A

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

79
Q

Service by posting

A

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

80
Q

A bill of review may be presented within

A

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

81
Q

A bill of review lies only to

A

A final order in an equitable proceeding

82
Q

The bill of review must be filed within

A

Six months of the entry of the final order against which the bill of review is being filed

83
Q

GDC has exclusive SMJ for claims up to and including

A

$4,500 exclusive of interest

84
Q

There is no statutory authority for a jury in

A

The GDC

85
Q

Only the ________ courts are authorized to conduct jury trials

A

Circuit Courts

86
Q

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,

A

Be admitted in the CC trial

87
Q

The object of detinue is to

A

Recover specific personal property

88
Q

To bring an action for detinue, the P must have

A

1) An interest in the property, and

2) An right to immediate possession

89
Q

A summons is not used in

A

GDC

90
Q

Declaratory judgment

A

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

91
Q

Unlawful detainer

A

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

92
Q

Bill to quiet title

A

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

93
Q

Ejectment

A

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

94
Q

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:

A

File an appeal brief in the VA Court of Appeals

As of January 1, 2022, all civil appeals go first to the Virginia Court

95
Q

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?

A

Within 21 days after the entry of judgment

96
Q

A potential juror can be stricken from the panel for cause if he is ________, ________, or ________

A

Is related to a party; has any interest in the case being tried; has expressed an opinion or bias in the matter

97
Q

Virginia’s General District Courts have exclusive subject matter jurisdiction for claims up to and including:

A

$4,500 not including any interest and attorney’s fees demanded

The Virginia General District Courts have “[e]xclusive original jurisdic

98
Q

Jim wants to appeal his personal injury case from the final judgment in the CC. Select all of the things below that Jim must do to perfect his appeal.

A

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 Appeal

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.

99
Q

Peremptory challenges must be exercised on

A

Racially neutral grounds

100
Q

T/F After voir dire, each side is entitled to exercise an unlimited number of challenges for cause

A

True

101
Q

________ days is usually always the deadline when going back to the same court we are in to ask to do something or file something

A

21

E.g., Motion to set aside the verdict

102
Q

________ days is usually deadline when we are taking a case out of the CC

A

30

(E.g., Filing a notice of appeal; filing a notice of removal)

103
Q

The 21 day rule

A

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

104
Q

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

A

21; modify; suspend; vacate

105
Q

Civil appeals are ________. A party who loses in the Court of Appeals may petition the ________ to hear the case

A

As of right; to the Virginia Supreme Court

106
Q

If a petition for a civil appeal is incorrectly filed in the wrong appellate court, that court will ________

A

Transfer the case to the correct appellate court

Case will not be dismissed, but transferred, and relate back to when you

107
Q

When a party files in the wrong appellate court, the matter cannot be ________, but must be ________ to the correct appellate court for consideration

A

Dismissed; transferred

108
Q

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

A

For cause

109
Q

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

A

Peremptory strike

110
Q

Preservation of error

A

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

111
Q

T/F When filing a notice of appeal, the event day does not count

A

True

112
Q

New evidence cannot be presented in

A

Appellate courts

113
Q

In appellate courts, new evidence cannot be presented. Appellate courts review the

A

Trial in the circuit court and addresses whether the circuit judge erred

114
Q

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

A

True

115
Q

A plea is

A

A responsive pleading

116
Q

The issue of failing to file within the applicable SOL can be raised only as

A

An affirmative defense and set forth in a responsive pleading. [And prohibits the SOL being raised by demurrer]

117
Q

As of January 01, 2022, all civil appeals go first to the

A

VA Court of Appeals as of right. No petition is required

118
Q

In PI actions, when a conservator or guardian has been appointed for an incapacitated person, the suit must be filed

A

Before the expiration of the applicable period of limitations or within one year after a conservator or guardian has been appointed, whichever occurs later

VA Civ Pro (2 decks)

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