VA Civ Pro Essay tested issues Flashcards
SOL for breach any unwritten contract, express or implied
3 years after the cause of action has accrued,
cause of action occurs when breach occurs
SOL for breach of written contract:
Signed by party to be charged:
Not signed by party to be charged:
Signed: generally 5 years after the cause of action has accrued
Not signed: generally 3 years after the cause of action has accrued
Cause of action accrues when breach occurs
SOL on defamation?
1 year after the cause of action has accrued
For defamation actions, the cause of action accrues on the date the defamatory acts occurred.
When can a plaintiff nonsuit?
before a motion to strike the evidence has been sustained
or before the jury retires from the bar
or before the action has been submitted to the court for decision
“the action” in the nonsuit statute refers to ___
the action pending before the court
You cannot nonsuit an already decided action
Wrongful death action SOL
2 years
A civil suit predicated on the death of a person may be brought by the decedent’s _____________________________________
personal representative; they must be named in suit not the dead person
Damages for a wrongful death suit are first distributed to ______
and then if none of those exist, then distributed to_____
Spouse, children, grandchildren
Parents and siblings/half siblings, any other related member of household primarily dependent on deceased;
Every action for wrongful death must be filed in the name of the _________, not the deceased
personal representative
A defendant must file an objection to venue within ___ days of service of process upon the defendant and must include _______
21 days
include where D believes venue would be proper
Venue is not jurisdictional in Virginia and no case shall be ______ on that basis
Instead must ______ to venue being improper
In the pleading, the defendant must set forth where _____ and the matter should be heard ________ by the court
dismissed
object
venue would be proper
promptly
Filing suit in the name of the deceased is a ________, and therefore any attempt by the plaintiff to amend or substitute the proper party should be ______
legal nullity
denied
A legal nullity is equivalent to there being ______
no filing
discovery, if ordered by the court to adjudicate any objection to _________, does not of itself, ______ personal jurisdiction
personal jurisdiction
waive
If you file an answer and conduct discovery unrelated to a PJ objection you have _______ PJ
waived
The VA long arm statute permits VA to exercise PJ over a defendant when..
Identifies a series of contacts with VA that are sufficient to give the court jurisdiction (contract, tort,family, property)
Once served with process you have ___ days to either ________ or ______
21 days
file a pre-answer motion
file an answer
If the court denies the defendant’s pre-answer motion, they have __ days to file an answer from ___________
21
denial of the motion
Affirmative defenses must be ______ in the _____
raised
first defensive pleading (the answer, or prior defensive pleading such as a plea at bar)
A motion for a new trial must be made within ___ days from judgement
Hearing and ruling within___ days of judgment
30
45
the defaulting defendant is entitled to appear at the hearing, and fully participate in the _______ hearing
damages
The Circuit Court can grant _____ to the defendant in default to file _______
Grants of leave should be granted _______
leave
late responsive pleadings and cure the default
liberally
Serving process on entities in VA
must be served to an officer, director, or registered agent
Who can serve process?
a sheriff in the county or jurisdiction where service is being served
or an uninterested party over the age of 18 that is a non-party and non-family member
If service of process was not valid, is the service of process still effective?
Yes, if the defendants still actually receive process (complaint + summons) in a timely manner (within one year after filing complaint)
forgiveness of improper service does not pertain to cases of ____________
divorce or annulment
SOL for personal injury
2 years
What are Category A/Mandatory venues?
CRAWI
Contract w/ forum selection clause
Real property, must be filed where property is located
Against the State, must be filed where plaintiff lives
Wills, must be filed where will was or would’ve been probated, usually the decedent’s residence
Injunctive relief, must file where the defendant would be forced to perform
What are Category B/Permissible venues
Where the defendant resides or works
Where the registered agent resides
Where a business D has its principal place of business
Where the cause of action arose
Where the Corp’s CEO resides
Where a business D conducts substantial business as long as it relates to the claim
What are Category B/Permissible venues
Where the defendant resides or works
Where the registered agent resides
Where a business D has its principal place of business
Where the cause of action arose
Where the Corp’s CEO resides
Where a business D conducts substantial business as long as it relates to the claim
What should you do if you believe you are an improper defendant?
If no valid cause of action: File a demurrer
If valid cause of action: File a motion for summary judgment
File a plea for misjoinder (if multiple parties)
Summary judgment determines
(i) whether there is a genuine dispute as to any material
fact, and if not, (ii) does the law determine that the movant should win
Note. uncommon in VA
In summary judgment, the Court does not weigh parties’ evidence; must construe evidence in the light most favorable to _________________________
non-movant
What do parties typically use to support or oppose a motion for summary judgment?
I:
R:
D:
Parties typically use interrogatories, requests for admission, and documents produced during discovery to support/oppose motion for SJ
jurisdiction over a non-resident can only be exercised by the long arm statute if: if the out-of-Commonwealth tortfeasor caused ____________
-tortious injury in the Commonwealth by an act or omission outside the Commonwealth,
-if the non-resident regularly does or solicits business, or
-engages in any other persistent course of conduct, or
-derives substantial revenue form goods used or consumed or services rendered, in the Commonwealth
first nonsuit is _____
as of right
so long as the motion for relief from a default judgement is made within ____ years from the date of the judgment, the Court can vacate the judgment on the ground of _____ on the Court
2
fraud
Procedure for filing an appeal to CC from GDC
o Losing party must file a notice of appeal within ________ days of entry of judgment o Notice of appeal is filed in _________________________ court
10
GDC
A sheriff may only serve the summons and complaint in her
county/city or in a contiguous county/city.
if not a sheriff, papers 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
It is a foreign corporation which has properly registered to do business in Virginia. As such, process may be served on
any officer, director, or registered agent of the foreign corporation
If no valid cause of action, defendant should file a ____
demurrer
If there is a valid cause of action, the defendant should ____
participate in discovery, and Through the use of interrogatories, requests for admission, documents, and depositions, the D may be able to establish that P has no facts which would support a claim against him as a matter of law. He then may file a motion for summary judgment pursuant to Rule 3:20 and Va. Code §8.01-420. (Note however, that no deposition can be used to support SJ motion, unless all parties agree)
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
In addition to the basic elements for specific performance which are _________ the plaintiff must show __________
1.the contract at issue is enforceable;
2.all conditions precedent to performance have been satisfied;
3.the contractual terms at issue are sufficiently definite to be enforced by the court;
4. the defendant is able to perform or the performance can be abated;
5. and it would be fair (equitable) to specifically enforce the contract
that there is no adequate remedy available at law
A court of equity will not decree specific performance of the agreement where it would entail
- a great hardship, and
- the hardship was due, in some measure, at least, to the conduct of the other party
To rescind a contract based on fraud, there must be ___
there must be a false statement of facts, positively made
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.
Intervention requires
leave of court
To support a suit for a temporary injunction, the party must
- allege facts showing that she has a recognized legal right to the subject at issue
- and will suffer irreparable harm without an injunction .
- must further allege facts showing that the balance of equities weighs in her favor, that she is likely to succeed on the merits of her claim ,
- that exigent circumstances support the injunction, and
- that she has no adequate remedy at law.
The granting of an injunction is an extraordinary remedy and rests upon the discretion of the court. It will not be awarded unless the court is satisfied of the party seeking the injunction’s equity
Contract Based Contacts for PJ
If a D __________ outside of VA covered by an _____________________, and the product ____________, the D will be subject to PJ if:
i. The D could ________ that the product ____________________ in VA; and
ii. The D conducts ________________________ in VA or ______________________________ from VA
sells a product
explicit or implied warranty
causes injury in VA
reasonably expect
will be used
regular business
derives substantial revenue
Contract based contacts:
If D conducts ___________or___________ into the state, a VA court will have PJ over the D provided that the claim being brought ____________________
business in VA or sells goods or services
arises from the defendant’s contacts within the state
the minimum contacts test under the due process clause of the US Constitution is satisfied if
the defendant had contacts with Virginia displaying purposeful availment of Virginia’s laws and, thus, putting the defendant on reasonable notice of suit in VA.
AN appeal to the VA Supreme Court is by:
petition not as of right
If child is minor, SOL is tolled until
age of 18 or is emancipated
(unless medical malpractice Ordinary 2-year SOL applies unless the minor is younger than 8 when injured, in which case she has until she is 10 years old to sue)
The trial court is ______ from considering discovery depositions in a motion for _______
barred
SJ
(unless all parties consent)
The trial court is ______ from considering discovery depositions in a motion for _______
barred
SJ
(unless all parties consent)
A party wishing to preserve an objection for an appeal must:
- make a timely objection
- state the grounds for the objection at the time of court’s ruling
Establishing PJ under VA state law-
Start with ___
o Virginia’s long-arm statute deals with defendants that do not reside in Virginia
o Identifies a series of contacts with VA that are sufficient to give the court jurisdiction
Could be Contract/tort/property/family contacts
Federal PJ analysis:
PJ under due process can arise out of
- Domicile
- Minimum contacts and a relationship b/w those contacts and the claim (but-for analysis)
- Consent
- Service of process “tag jx”
- Essentially at home (for businesses)
PJ under due process can arise out of
- Domicile
- Minimum contacts and a relationship b/w those contacts and the claim (but-for analysis)
- Consent
- Service of process “tag jx”
- Essentially at home (for businesses)
PJ VA
Contract based contracts
If D conducts business in VA, or sells goods or services into the state, a VA court will have PJ over the D provided that the claim being brought arises from defendant’s contacts with the state
If a D sells a product outside of VA covered by an explicit or implied warranty, and the product causes injury in VA, the D will be subject to PJ if:
i. The D could reasonably expect that the product be used in VA; and
ii. The D conducts regular business in VA or derives substantial
revenue from VA
PJ VA Tort based contacts
If a D acts in VA, causing tortious injury in the state, VA will have PJ over that particular claim
If a D acts outside of VA, causing tortious injury in the state, VA will have PJ over the D provided that:
i. The claim arises from those contacts; and
ii. The D has systematic contacts with the state
PJ VA Property based contacts
If a D has an interest (e.g., ownership, possession) in real property in VA, VA will have PJ over the D provided the claim arises from that interest
PJ VA Family based contacts
Divorce action: If the matrimonial domicile was in VA, VA has PJ to adjudicate a divorce
Support action: If a D is obligated to pay spousal/child support to a VA resident, VA has PJ to enforce the obligation
