VA Civil Procedure Flashcards
Define Motion to Dismiss in Virginia
The defendant may file a motion to dismiss based on any ground that would result in dismissal of the suit.
Define Demurrer
A pleading stating that although the facts alleged in a complaint may be true, they are insufficient to state a claim for relief and for the defendant to frame an answer.
AKA
It fails to state a cause of action / state facts upon which the relief demanded can be granted.
Necessary Parties
All persons who have immediate interest in resisting the demand are necessary parties to the suit. A court is powerless to proceed with the suit unless all necessary parties are properly before the court.
Subrogation
Principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy
Requests for Production to Non-parties
Okay under SDT
Motion for Order Compelling Discovery
- Despondent fails to answer a question
- Corporation fails to make a designation
- party fails to answer interrogatory
- party fails to permit inspection
Party seeking discovery may move for an order compelling an answer
Motion for Summary Judgment
Hard to get.
- Anytime after all pleadings have been filed
- Except in a divorce/annulment
- contend that there is no disputed issues of fact, and that the movant is entitled to judgment as a matter of law
Voir Dire
Questioning of a proposed panel of jurors by the judge and lawyers to determine if there is any member of the panel who should not serve on the jury
Motion to Strike the Evidence
Essentially motion for summary judgment, like JMOL, DURING TRIAL.
When the sufficiency of a party’s evidence is challenged by a motion to strike, a trial court must review the evidence and all reasonable inferences drawn from such evidence in the light most favorable to non-moving party.
If sustained, the court must enter summary judgment or partial summary judgment in conformity with its ruling on the motion to strike.
Motion to Set Aside the Verdict
May be granted when the jury verdict is contrary to the evidence or without evidence to support it
- plainly wrong, without credible evidence to support jury decision
Bill of Review
A bill of review is a bill in equity that requests a judge to reopen a case in which a final order has been entered.
Normally, Rule 1:1 removes a case from a court’s jurisdiction 21 days after the entry of a final order.
However, a bill of review may be filed within six months of the entry of a final order.
Burden of Proof for Bill of Review
Where a party seeks a bill of review based on newly discovered evidence, the party must show:
1) That the evidence was discovered after the conclusion of the trial;
2) That the evidence would likely produce a different result;
3) That the evidence is not cumulative, corroborative, or repetitive;
4) That the evidence could not have been discovered before trial through the use of reasonable diligence; and
5) That the evidence can be produced at trial.
Right to a Jury
Preserved by VA Constitution
In any action at law in which the recovery sought is greater than $20, exclusive of interest, unless one of the parties demands that the case or any issue be tried by a jury, or the court on its own motion directs that one or more issues be tried by a jury
Interlocutory Appeal to the Virginia Supreme Court: Statement must include:
concise analysis of the statutes, rules, cases believed to be determinative of the issues and request that the court certify in writing that the order or decree involves a question of law as to which:
1) there IS substantial ground for difference of opinion
2) there is no clear, controlling precedent on point
3) determination of the issues will be dispositive of a material aspect of the proceeding currently pending before the court, AND
4) the court and the parties agree it is in the parties’ best interest to seek an interlocutory appeal
Final Judgment Rule
No judgment or order may be appealed unless it is final. A final order is one that disposes of the whole subject, gives all the relief that is contemplated and leaves nothing to be done by the court.
Res Judicata Elements
Claim forever barred from
a. prosecuting any second or subsequent civil action against THE SAME PARY/PARTIES
b. on ANY claim or cause of action
c. that arises from the SAME conduct, transaction, or occurrences
Concurrence of 4 Identities to prevail in Res Judicata Claim
(1) Identity of remedies sought
(2) Identity of Causes of Action
(3) Identity of the Parties AND
(4) Identity of the quality of the persons for or against whom the claim is made
Issue Preclusion - Collateral Estoppel
Precludes the SAME PARTIES to a PRIOR PROCEEDING from litigating in a later proceeding ANY ISSUE OF FACT that actually WAS LITIGATED and was ESSENTIAL to the final judgment in the first proceeding
Collateral Estoppel - 4 Elements
(1) Same parties
(2) Factual issue already litigated
(3) Factual issue was essential to the prior judgment
(4) Prior proceeding resulted in a valid, final judgment against the party to whom the doctrine is sought to be applied
Unlawful Entry or Detainer
If any forcible or unlawful entry is made upon another’s land, OR
if, when the entry is lawful and peaceable, the tenant detains possession of the land after the right has expired, without consent of the person entitled to possession,
the party entitled to possession may file a motion for judgment in the circuit court alleging that the defendant is in possession and unlawfully withholds from the plaintiff the premises in question.
Ejectment
If a person is entitled to the use of land but is wrongfully kicked off the property, the person may bring an action for ejectment. Ejectment actions are litigated in the same manner as an ordinary civil suit.
Motions in Limine
Motions in limine are used to raise objections that one party may have certain evidence that is expected to be offered by the opposing party. It is helpful to raise such issues prior to trial and if the judge excludes the evidence (grants the motion in limine), then opposing counsel cannot comment on the evidence in opening statement.
Is mitigation of damages as an affirmative defense MUST be raised in the responsive pleading?
No.
Although “mitigation of damages” is an affirmative defense, in Virginia it need not be raised in a responsive pleading, as the defense is not dispositive of the action. See Monahan v. Obici Medical
Management Services, Inc., 271 Va. 621 (2006). The court should deny Paul’s Motion in Limine for the reasons set
forth. If the evidence supports the instruction, it should be a defense to be considered by the jury.
