VA Civ Pro Essay tested issues

Question 1

SOL for breach any unwritten contract, express or implied

Answer 1

3 years after the cause of action has accrued,
cause of action occurs when breach occurs

Question 2

SOL for breach of written contract:
Signed by party to be charged:
Not signed by party to be charged:

Answer 2

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

Question 3

SOL on defamation?

Answer 3

1 year after the cause of action has accrued
For defamation actions, the cause of action accrues on the date the defamatory acts occurred.

Question 4

When can a plaintiff nonsuit?

Answer 4

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

Question 5

“the action” in the nonsuit statute refers to ___

Answer 5

the action pending before the court
You cannot nonsuit an already decided action

Question 6

Wrongful death action SOL

Answer 6

2 years

Question 7

A civil suit predicated on the death of a person may be brought by the decedent’s _____________________________________

Answer 7

personal representative; they must be named in suit not the dead person

Question 8

Damages for a wrongful death suit are first distributed to ______
and then if none of those exist, then distributed to_____

Answer 8

Spouse, children, grandchildren

Parents and siblings/half siblings, any other related member of household primarily dependent on deceased;

Question 9

Every action for wrongful death must be filed in the name of the _________, not the deceased

Answer 9

personal representative

Question 10

A defendant must file an objection to venue within ___ days of service of process upon the defendant and must include _______

Answer 10

21 days
include where D believes venue would be proper

Question 11

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

Answer 11

dismissed
object
venue would be proper
promptly

Question 12

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 ______

Answer 12

legal nullity
denied

Question 13

A legal nullity is equivalent to there being ______

Answer 13

no filing

Question 14

discovery, if ordered by the court to adjudicate any objection to _________, does not of itself, ______ personal jurisdiction

Answer 14

personal jurisdiction
waive

Question 15

If you file an answer and conduct discovery unrelated to a PJ objection you have _______ PJ

Answer 15

waived

Question 16

The VA long arm statute permits VA to exercise PJ over a defendant when..

Answer 16

Identifies a series of contacts with VA that are sufficient to give the court jurisdiction (contract, tort,family, property)

Question 17

Once served with process you have ___ days to either ________ or ______

Answer 17

21 days
file a pre-answer motion
file an answer

Question 18

If the court denies the defendant’s pre-answer motion, they have __ days to file an answer from ___________

Answer 18

21
denial of the motion

Question 19

Affirmative defenses must be ______ in the _____

Answer 19

raised
first defensive pleading (the answer, or prior defensive pleading such as a plea at bar)

Question 20

A motion for a new trial must be made within ___ days from judgement
Hearing and ruling within___ days of judgment

Answer 20

30
45

Question 21

the defaulting defendant is entitled to appear at the hearing, and fully participate in the _______ hearing

Answer 21

damages

Question 22

The Circuit Court can grant _____ to the defendant in default to file _______
Grants of leave should be granted _______

Answer 22

leave
late responsive pleadings and cure the default
liberally

Question 23

Serving process on entities in VA

Answer 23

must be served to an officer, director, or registered agent

Question 24

Who can serve process?

Answer 24

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

Question 25

If service of process was not valid, is the service of process still effective?

Answer 25

Yes, if the defendants still actually receive process (complaint + summons) in a timely manner (within one year after filing complaint)

Question 26

forgiveness of improper service does not pertain to cases of ____________

Answer 26

divorce or annulment

Question 27

SOL for personal injury

Answer 27

2 years

Question 28

What are Category A/Mandatory venues?

Answer 28

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

Question 29

What are Category B/Permissible venues

Answer 29

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

Question 30

What are Category B/Permissible venues

Answer 30

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

Question 31

What should you do if you believe you are an improper defendant?

Answer 31

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)

Question 32

Summary judgment determines

Answer 32

(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

Question 33

In summary judgment, the Court does not weigh parties’ evidence; must construe evidence in the light most favorable to _________________________

Answer 33

non-movant

Question 34

What do parties typically use to support or oppose a motion for summary judgment? I: R: D:

Answer 34

Parties typically use interrogatories, requests for admission, and documents produced during discovery to support/oppose motion for SJ

Question 35

jurisdiction over a non-resident can only be exercised by the long arm statute if: if the out-of-Commonwealth tortfeasor caused ____________

Answer 35

-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

Question 36

first nonsuit is _____

Answer 36

as of right

Question 37

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

Answer 37

2 fraud

Question 38

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

Answer 38

10 GDC

Question 39

A sheriff may only serve the summons and complaint in her

Answer 39

county/city or in a contiguous county/city.

Question 40

if not a sheriff, papers must be served by

Answer 40

any person of age 18 years or older and who is not a party or otherwise interested in the subject matter of the controversy

Question 41

It is a foreign corporation which has properly registered to do business in Virginia. As such, process may be served on

Answer 41

any officer, director, or registered agent of the foreign corporation

Question 42

If no valid cause of action, defendant should file a ____

Answer 42

demurrer

Question 43

If there is a valid cause of action, the defendant should ____

Answer 43

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)

Question 44

Under the doctrine of unclean hands

Answer 44

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

Question 45

In addition to the basic elements for specific performance which are _________ the plaintiff must show __________

Answer 45

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

Question 46

A court of equity will not decree specific performance of the agreement where it would entail

Answer 46

1. a great hardship, and 2. the hardship was due, in some measure, at least, to the conduct of the other party

Question 47

To rescind a contract based on fraud, there must be ___

Answer 47

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.

Question 48

Intervention requires

Answer 48

leave of court

Question 49

To support a suit for a temporary injunction, the party must

Answer 49

1. allege facts showing that she has a recognized legal right to the subject at issue 2. and will suffer irreparable harm without an injunction . 3. 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 , 4. that exigent circumstances support the injunction, and 5. 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

Question 50

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

Answer 50

sells a product explicit or implied warranty causes injury in VA reasonably expect will be used regular business derives substantial revenue

Question 51

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 ____________________

Answer 51

business in VA or sells goods or services arises from the defendant's contacts within the state

Question 52

the minimum contacts test under the due process clause of the US Constitution is satisfied if

Answer 52

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.

Question 53

AN appeal to the VA Supreme Court is by:

Answer 53

petition not as of right

Question 54

If child is minor, SOL is tolled until

Answer 54

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)

Question 55

The trial court is ______ from considering discovery depositions in a motion for _______

Answer 55

barred SJ (unless all parties consent)

Question 56

The trial court is ______ from considering discovery depositions in a motion for _______

Answer 56

barred SJ (unless all parties consent)

Question 57

A party wishing to preserve an objection for an appeal must:

Answer 57

1. make a timely objection 2. state the grounds for the objection at the time of court's ruling

Question 58

Establishing PJ under VA state law- Start with ___

Answer 58

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

Question 59

Federal PJ analysis: PJ under due process can arise out of

Answer 59

1. Domicile 2. Minimum contacts and a relationship b/w those contacts and the claim (but-for analysis) 3. Consent 4. Service of process "tag jx" 5. Essentially at home (for businesses)

Question 60

PJ under due process can arise out of

Answer 60

1. Domicile 2. Minimum contacts and a relationship b/w those contacts and the claim (but-for analysis) 3. Consent 4. Service of process "tag jx" 5. Essentially at home (for businesses)

Question 61

PJ VA Contract based contracts

Answer 61

 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

Question 62

PJ VA Tort based contacts

Answer 62

 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

Question 63

PJ VA Property based contacts

Answer 63

 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

Question 64

PJ VA Family based contacts

Answer 64

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