VA Civil Procedure Flashcards
1
Q
What is personal jurisdiction?
A
Power over the parties i.e. defendant since plaintiff filed case PJ is automatic.
2
Q
How do we find out if PJ exists?
A
1) Look at whether a VA statute is satisfied. Then, 2) determine whether the constitution is satisfied.
3
Q
When does VA have in personam jurisdiction?
A
VA has in personam jurisdiction over Ds who are 1) served w/ process in state or 2) who reside in VA. Ds with such substantial ties are subject to general PJ.
4
Q
What is general PJ?
A
Substantial ties allow that person to be sued in VA on a claim that arose anywhere in the world.
5
Q
What is the VA long arm statute?
A
Statute that provides specific PJ. Claim must arise from D doing one of the following in VA: causing tortious injury instate by an act or omission instate; causing tortious injury instate by out of state conduct; K to supply services or things; has an interest in, uses, or possesses realty in VA; transacts any business in VA; causes injury in VA by breach of warranty where sale was out of state; domestic relations.
6
Q
What is specific PJ?
A
Can sue a non-resident person or entity for something she has done or an effect she has caused in VA.
7
Q
When may a D be sued for causing tortious injury in state by act or omission out of state?
A
D regularly does or solicits business in VA or engages in any other persistent course of conduct from which it derives substantial revenue from goods used in VA.
8
Q
When may there be specific PJ over a person who transacts any business in VA?
A
VA is a single transaction state. PJ okay if the claim arises even from just one business contact with VA.
9
Q
When may there be specific PJ over a person who causes injury in VA by breach of warranty where sale was out of state?
A
Seller could reasonably foresee effect in VA and she regularly does or solicits business here or derives substantial revenue from goods consumed in VA.
10
Q
When may there be specific PJ over a person because of domestic relations?
A
Maintaining a matrimonial domicile in VA at the time the claim for divorce or separate maintenance arose or at the time of separation or at the time suit is filed are supports PJ.
11
Q
What is the non-resident motorist act (NRMA)?
A
Allows jurisdiction over the owner or operator of a motor vehicle involved in an accident in VA. PJ also arises under long arm statute because it causes tortious injury instate by an act or omission in state.
12
Q
What is the constitutional standard for PJ?
A
International Shoe. Does D have such minimum contacts w/ the forum so that jurisdiction doesn’t offend traditional notions of fair play and substantial justice? Domicile, consent, and presence in forum when served generally meet the test.
13
Q
If we get a difficult case about the constitutionality of PJ, what are the factors to consider?
A
Contact, relatedness, and fairness.
14
Q
For purposes of constitutional PJ, what is sufficient contact?
A
Some tie between D and forum that results from purposeful availment i.e. D’s voluntary act (but D doesn’t necessarily have to set foot in VA). It must be foreseeable that D could get sued in this forum due to the voluntary contact.
15
Q
For the purposes of constitutional PJ, what is relatedness?
A
Does P’s claim arise from contact w/ the forum? This is always met when there is specific PJ under the long arm and NRMA.
16
Q
When claim doesn’t arise from D’s contact with the forum, when is jurisdiction still sufficiently related?
A
When there is general PJ i.e. D has continuous and systematic ties with the forum so that D is essentially at home in the forum. Person is always at home where domiciled; business is always at home where formed and where PPB. If case is unclear, must have some physical presence.
17
Q
What is the practical difference between general and specific PJ?
A
A D who is essentially at home in the forum can be sued there for a claim that arose anywhere in the world i.e. general PJ. A D with lesser contacts generally can be sued only for a claim arising from those contacts i.e. specific PJ.
18
Q
For the purpose of constitutional PJ, what is fairness?
A
Is PJ fair under the circumstances? Consider: Convenience for Ws and parties;state’s interest; P’s interest. Forum is OK unless it puts D at a severe disadvantage in the litigation.
19
Q
When must the fairness inquiry for constitutional PJ be conducted?
A
When there is specific PJ only. General PJ automatically considered fair.
20
Q
What is subject matter jurisdiction?
A
State can hear any case except those for which there is exclusive federal Q jurisdiction.
21
Q
What is the SMJ of circuit courts?
A
Can hear any civil action except those for which exclusive jurisdiction is vested in another court. EXCEPTION: actions for monetary claims or claims to specific personal property of $4,500 or less (these go to General District Court).
22
Q
What is general district court (GDC)?
A
Court not of record that is statutory and basically legal (no injunctions may be granted). No formal pleadings or discovery or jury.
23
Q
What is the SMJ of GDCs?
A
Actions at law in tort, K or detinue if amount in controversy is $25K or less; attaching personal property if value is $25K or less; may hear interpleader cases if stake is $25K or less (or in any amount if ernest money deposits are at issue); may hear claims in any amount for rent due or to oust D from real property, disputes over leases, and guarantees of leases; may issue distress warrants.
24
Q
When does GDC have exclusive SMJ?
A
Monetary recovery or claim to specific personal property of $4,500 or less. In determining amount in controversy, do not include interest or attorney’s fees.
25
What is an action in detinue?
Claim for recovery of personal property or value thereof.
26
When may a party appeal from GDC to circuit court?
Always. There is an absolute right to appeal from GDC to CC if amount involved is more than $50.
27
What are the steps for appealing a final judgment to CC?
1) File writing notice of appeal w/ clerk of GDC w/in 10 days of judgment; 2) post bond and pay writ tax in GDC w/in 30 days of judgment. Seeking rehearing at GDC doesn't increase these time requirements.
28
What happens when the case gets appealed from GDC to CC?
Start over at CC, which hears the case de novo.
29
If D appeals case to CC, can P amend to increase claim to over $25K?
Yes. BUT not clear whether P could appeal from GDC and try to amend to claim more than $25K.
30
Will VA enforce forum selection clauses?
Yes. If clause is fair and reasonable.
31
What are the clauses that fall into CATEGORY A venue?
Local actions, wills, writs, and injunctions.
32
What are local actions?
Cases for recovery, partition, or judicial sale of land, to establish boundaries to land, for unlawful entry or detainer of land (incl. trespass), to subject land, to a debt, to quiet title or remove encumbrance. Venue is OK where the land or any part thereof lies.
33
What are wills actions and what is their proper venue?
Cases to establish or impeach a will should be brought where the will was probated or if not yet probated where it could have been offered for probate.
34
What are writs and what is their proper venue?
Mandamus (forcing officer to perform a ministerial act); prohibition (stopping lower ct from exercising jur); certiorari (review of zoning decision). Venue where the proceeding to which the writ relates is located.
35
What is the venue rule for actions seeking injunctions?
Where the subject proceeding or judgment is pending or was rendered, or where the subject act is to be done, is being done, or is apprehended to be done.
36
When there is not Category A venue i.e. when there is Category B venue for any other run of the mill case, what venue choices are appropriate?
1) Where D resides or has principal place of employment; 2) where cause of action or any part thereof arose; 3) where D has a registered office or appointed agent; 4) where D regularly conducts substantial business activity; 5) in case to recover personal property, where property is located; 6) in case against appointed fiduciary, where fiduciary qualified.
37
If there is an objection to venue, when is a motion objecting to venue timely?
In CC, must file motion w/in 21 days of service unless court extends time to file responsive pleading. In GDC, ok to object to venue on or before day of trial.
38
What happens if a party timely files a motion to object to venue and the court grants it?
Court will transfer the case unless there's good cause to keep the case. There is good cause to refuse the transfer when a party doesn't press the issue promptly.
39
If there are multiple Ds who reside in different localities, where is venue proper?
If venue is ok for one D, it's good for all. EXCEPT if one D is entitled to Category A venue, she can object and the case will be transferred there.
40
If venue becomes improper due to dismissal of the D to which venue was proper, when may the remaining D object to venue and obtain a transfer?
Must file a motion w/in 10 days of dismissal of the D to whom venue was proper. Must show D who has been dismissed was 1) joined improperly or 2) joined to create venue.
41
If all Ds are non-residents, where is venue proper?
Where P resides. BUT if there is a VA co-D, venue must be proper as to her.
42
What must court consider and find before transferring a case from a proper venue?
Good cause to transfer. Consider: P's choice of forum, agreement of parties, avoidance of substantial inconvenience to parties or Ws, delay in party's seeking transfer. Court has discretion.
43
What is forum non conveniens dismissal?
If 1) COA accrued out of state, 2) is brought by a non-resident of VA, and 3) there is a more convenient venue outside VA, court might dismiss w/o prejudice. Court must find good cause and that the other court has jurisdiction. Dismissal may be conditioned on state conditions.
44
What is service of process?
Serving D w/ summons and copy of complaint.
45
In GDC, what is the summons called?
A warrant OR notice of motion for judgment.
46
What is the summons called in CC?
Summons.
47
Who may serve process?
An adult civilian who is not interested in the case; sheriff or deputy.
48
What are the three ways to serve process and in what order must they be tried?
Personal (actual) service; Substituted service; Posted service. Can only move down the list if one of the "higher" forms of service is impossible.
49
What is personal (actual) service?
Deliver process directly to D. Must be tried (and be unavailable) before you can try any other methods.
50
What is substituted service in VA?
Second best way to try to serve process. Requires service at (1) D's usual abode, (2) to a member of D's family who is at least 16 who is not a guest or a temporary sojourner, (3) must tell recipient what the contents of the service entail.
51
What is posted service in VA?
Worst way to serve process. Must 1) post a copy of process on D's front door and 2) at least 10 days before taking default judgment mail process to D and certify to clerk the mailing took place.
52
What is the curing statute?
If service was not technically proper, it works if D actually and timely received service. This does not apply in divorce or annulment cases.
53
Can P request that D waive formal service?
Yes. Same rules as in federal court apply.
54
If D is in VA to be a W in another civil case, is she immune form service for a VA civil case?
No. But she would be immune for a federal civil case. There is immunity for one summoned to appear before GJ or in a criminal case, but court can deny immunity.
55
What does service of process under the long arm statute look like?
P executes and files an affidavit setting forth that D is a nonresident or can't be found with due diligence and D's last known address. P then gives process and a copy of the affidavit to the Secretary of the Commonwealth. SOC sends process to D by certified mail, and also sends a certificate of mailing to court. Services is complete when received by the clerk of the court. OR P can arrange for personal service out of state by one authorized to serve process there.
56
What is the return (proof of service)?
A report to the court by the officer who served process, relating what she did to effect service.
57
When is service timely?
Case is commenced when filed, which tolls SOL. P must serve process w/in 12 mos. of filing or else he can't win judgment (unless he shows due diligence).
58
What is the required form of pleadings?
Must state (in numbered paragraphs) the facts on which party relied (OK if include true nature of the claim or defense). At least one lawyer must be set forth and sign doc. Docs that are the basis of the claim or defense may be annexed as an exhibit, making them part of the pleading.
59
What is a motion craving oyer?
When a document that should be annexed to the pleading is not included, file this motion to require other party to produce the document.
60
What is the attorney certificate?
Attorney must sign all pleadings, motions and other papers certifying 1) she read it, 2) it is grounded in fact and law to the best of her knowledge, and 3) it is not for harassment or delay.
61
What are the possible sanctions for delay of an attorney certificate?
Liable for costs and attorney fees incurred by improper document.
62
What if the attorney refuses to sign a document?
Document can be stricken.
63
Can a party offer alternative pleadings?
Yes. Can plead alternative facts as to alternative parties if arise from same T/O.
64
Can the court extend time for pleadings and motions?
Yes. It can do so even if the time for filing the doc has passed. Court can't condition extension of time on the party's posting a bond.
65
What must the court consider on a motion to allow filing of a late pleading?
Review for abuse of discretion, but uphold decision if court considered 1) GF of moving party; 2) prejudice to other party; 3) extenuating circumstance; 4) merit of proposed pleading.
66
What is the one motion for which the court cannot extent time for filing?
VENUE. Unless court extends time to file responsive pleading.
67
What are the two versions of a summons that can be issued in GDC?
1) Civil warrant from the clerk of the court, fills in blanks regarding names of parties and nature of grievance. Directed to sheriff/deputy who serves it on D. 2) P can draft a tailored motion for judgment.
68
What does a GDC summons tell D?
He must appear in court on a certain day to respond. Return date can't be more than 60 days or fewer than 5 days from service of process.
69
In GDC, does D usually file a responsive pleading?
No. Generally D shows up when requested and the case is tried. D may move for a bill of particulars for more info about P's case, and P can move for grounds of defense to compel D to file a responsive pleading. If a response is required by one of these motions, the court can enter SJ against party failing to file.
70
Does trial always have to go forward on the return date?
A party may move for a continuance, the granting of which is in court's discretion. Must move before return date or court will not grant unless it's in the interest of justice.
71
In GDC, when must objection based on venue be brought?
Anytime before or on the day of trial.
72
What if a suit in GDC is brought on a written instrument?
The original must be tendered to the court unless excused by court or statute for good cause.
73
In CC, what must a complaint include?
Name of court, names and addresses of parties, signature of lawyer, statement of facts in numbered paragraphs, and prayer for relief. Need not allege jurisdiction or venue.
74
What is the statement of relief for damages sometimes called?
Ad damnum clause.
75
What must be identified separately in the prayer for relief?
Punitive damages.
76
In a negligence suit, what must be particularly or generally alleged?
May allege negligence and proximate cause generally, but must allege a duty was violated with more specificity.
77
In VA, when may claims be joined?
P may join claims arising from same T/O, but it's misjoinder if P tries to join unrelated claims.
78
When must D respond to a pleading?
W/in 21 days of services of process.
79
What is a motion for a bill of particulars?
D can make in response to pleading to require the other side to amplify her pleading. Must be made promptly.
80
What must D do in a motion objecting to venue?
State why venue is improper AND what places would be proper. Must be timely (w/in 21 days after service unless court extends time to file responsive pleading). If the motion objecting to venue is improper, court still has power to transfer.
81
How can a D challenge a PJ?
Must make a special appearance to assert court lacks PJ or that service was never made. MUST be raised FIRST AND BY ITSELF or else waived.
82
How can a D challenge improper service?
Motion to quash process. Waived if D makes a general appearance, which includes filing a pleading going to merits, asserting defenses, or filing a motion for a bill of particulars.
83
What is a demurrer?
Tests the sufficiency of pleading that seeks affirmative relief. Can be used to challenge misjoinder of claims, failure to state a COA, or lack of SMJ, but can't use to challenge lack of PJ. Demurrer may not allege new facts.
84
When file a demurrer for failure to state a COA, what does this apply to?
Leaving out an element of the claim, but must state specifically what is insufficient.
85
What if a demurrer is sustained?
Usually sustained w/o prejudice and sets time for amendment.
86
When must a demurrer be filed?
Before answer or at the same time. If D files answer before she demurs, can't demur w/o court permission.
87
What is a VA special plea?
Affirmative defense. May be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer. MUST assert or risk waiver.
88
What is the rule for answer?
Same as in federal court. Must respond to allegations of complaint (admit/deny/etc.) and affirmative defenses. After court addressed all demurrers, pleas, and motions, D must file answer w/in 21 days. If allegations not denied, treat as an admission.
89
What are equitable defenses to legal actions and when may they be offered?
Failure of consideration, fraud in inducement, breach of warranty, unconscionability i.e. claims that diminish P's claim (CL recoupment). Can raise defenses in legal and damages action on K and can recover damages on them, but cannot reform or rescind K or compel conveyance of land.
90
What are the special sworn pleading requirements in VA?
If D wants to raise defenses of lack of genuine handwriting, lack of corporate partnership or agency status, or lack of ownership or operation of property or instrumentality, he must do so in a sworn statement. If these defenses are unsworn, P may make a motion to strike pleadings w/in 7 days of filing or P waives objection.
91
What are VA's special K and account action rules?
In action on K seeking payment of money, P can file w/ complain an affidavit stating amount of claim, that amount is justly due, and date from which he seeks interest. If D fails to plead under oath P isn't entitled to money, judgment for P; if D does plead under oath, P entitled to continuance.
92
Is P required to reply to a response by D?
No. Deem denial of everything. EXCEPTION if D pleads new matter in defensive response and expressly requests that P respond to the new matter. Then P has 21 days to admit or deny new matters in a "reply."
93
When may pleadings be amended in VA?
Never a right to amend. Court must grant this right. If no court allowance, amendments have no legal effect. P must have the permission to amend before SOL runs.
94
What will a court consider in determining whether to allow amendments?
Consider whether allowing amendment would unduly delay proceedings or prejudice a party or whether amendment would be futile.
95
What discovery is allowed in GDC?
No discovery as a general matter. May issue subpoenas and subpoenas duces tecum.
96
In CC, what discovery is required/allowed?
No required disclosures; 21 days instead of 30 (federal court); max interrogatories = 30; no limit on depositions; no requests for production to seek info from non-parties.
97
Who can issue subpoenas?
Attorneys if sign as officer of court and give copies to all parties and the court.
98
What is relevant in VA?
Reasonably calculated to lead to admissible evidence. BUT standard is narrower in divorce, habeas, and imminent domain cases.
99
Who must sign objections and interrogatory answers?
Objections are signed by the lawyer; interrogatory answers are signed under oath by the party.
100
If a 3d party must sue on your behalf and try to get out of state W testimony before they return, what must the 3d party plaintiff do?
Become your fiduciary and sue. Notice W's deposition and subpoena them. Usually need a court order to take depo w/in 21 days of filing but not when they're about to leave jur. OR file a verified petition in CC where P resides seeking perpetuation of testimony. Court can order even if no case is filed.
101
What kinds of info is "relevant"?
Insurance policy though not admissible; info about D's net worth in a punative damages case.
102
How must documents be produced?
As kept in the usual course of business or organized and labeled to correspond with categories in the request.
103
When are there special rules about who can sue and be sued?
3d party beneficiary; joint obligors and tortfeasors; partnerships; executor or administrator; minors; person under disability; convicts.
104
What is the special rule for 3d party beneficiary standing?
Can sue in own right even if not mentioned in K.
105
What is the rule for suing joint obligors and tortfeasors?
P can sue one, some, or all at her option. The fact that she is barred as to one does not affect right to sue the others. The fact she settles with one does not affect right to sue others, BUT payment of judgment by one discharges all.
106
What is the special rule when suing partnerships?
Name the partnership and individual members so you can execute judgment against individual partners.
107
When can an executor or administrator be sued?
If the case relates to acts of the decedent, sue or be sued in rep capacity; if it relates to acts by the person individually, can sue in either capacity but must be sued in individual capacity.
108
When can a minor sue and be sued?
Minor may sue in own name by "next friend." Sue minor in own name but ask clerk to appoint a guardian ad litem or minor represented by a lawyer who has entered an appearance for him to make judgment valid. Exception that minor must have a guardian ad litem in order for minor's land to be encumbered.
109
When can a person under a disability sue and be sued?
Must be a formal incompetency proceeding which results in appointment of a fiduciary to act for the incompetent. Fiduciary may be a "committee", guardian, or conservator. Suit by or against person under disability will be by or against the fiduciary. If no fiduciary, same rules as for minors apply.
110
When can a convict sue and be sued?
While convict is in custody, he can't be sued individually. Must get a committee appointed. Convict instituting a suit waives the failure to have a committee appointed.
111
What are the rules for survival and revival under VA law?
All COAs (except divorce) survive death of any P or D. If P or D dies, the COA survives, but executor will make a motion to substitute himself as P or D. If party has some change in civil status, the case must be revived in the representative's name.
112
When must a counterclaim be filed?
Claim against opposing party must be filed w/in 21 days in CC, but in GDC anytime before trial is fine. Counterclaims are NEVER COMPULSORY even if transactionally related.
113
What kinds of counterclaims may be filed?
Can be for any claim,under any theory, that D has against P. This is much broader than P's joinder. LIMIT: counterclaim must be against all Ps jointly.
114
What are the procedural aspects of counterclaim?
Need not be formally served; after counterclaim, P has 21 days to respond; counterclaim can exceed P's claim, but if damages exceed 25K in GDC case, must bring a separate case in CC.
115
What are the rules for cross-claims in VA?
Generally the same as federal (always permissive, must be transactionally related, can be asserted against one of several co-parties). BUT, different from federal, you need to serve cross-claim w/ a summons historically. This may no longer be true (may only need to mail or send as a subsequent document), but no clear case law.
116
What are the timeline rules for cross-claim?
Must file w/in 21 days of service of process in CC, but anytime before trial in GDC. Cross-D has 21 days to file a responsive pleading, demurrer, plea, etc.
117
What is interpleader?
Defending party wants to join a 3d party from whom he will seek indemnity or contribution on underlying claim against D. Must have same T/O. D's pleading is called a 3d party complaint.
118
What are the procedural rules for filing a third party complaint (VA interpleader)?
In CC, right to file w/in 21 days after he serves first responsive pleading or w/ leave of court after that. In GDC, file w/in 10 days after service or until trial, whichever is earlier. Must serve third party complaint and summons on party to be joined.
119
What is the VA law rule on contribution among joint tortfeasors?
D can implead anybody who may own him indemnity or contribution on underlying claim. Duty to indemnify or contribute may arise in various ways.
120
When may tortfeasors seeking contribution from joint Ts?
Tort is negligence and involves no moral turpitude BUT can't implead joint tortfeasor against whom P couldn't recover.
121
In VA, what is the rule for joining necessary and indispensible parties?
Same as fed ct but statute lets ct order joinder as the ends of justice require. Difference from fed ct is do not dismiss for nonjoinder because statute says so. There is no such thing as indispensible.
122
What is VA interpleader?
Stakeholder can force all parties to litigate in a single proceeding to quiet his title to property. In GDC, may bring interpleader for claims less than 25K or in any amount for earnest money deposit, but no injunction may be issued. In CC, may get injunction and must go here if property worth more than 25K.
123
What are the rules for VA intervention?
ONLY IN CC, if absentee wishes to join a pending case, the court may allow it (never intervention of right). File petition for intervention, then file complaint, and serve complaint formally w/ process. No time limits for doing this, but watch delay and prejudice. Claim or defense in intervention must be related to the case.
124
Who brings VA wrongful death action?
Decedent's personal representative.
125
Who are the beneficiaries of a wrongful death action?
(1) SS, kids, and grandkids; (2) if no kids or grandkids, SS and decedent's parents; (3) if no SS, kids, or grandkids, decedent's parents and siblings. Award may include another relative who was part of decedent's household and dependent upon decedent for support. If no beneficiaries in any of these groups, damages pass to decedent's intestate takers.
126
Who decides how beneficiaries take in a wrongful death action?
Jury decides who gets how much.
127
In a wrongful death action, what damages may be recovered?
Must be fair and just damages in the following categories: 1) sorrow, anguish, and loss of companionship; 2) services and income provided by decedent; 3) medical or funeral expenses; 4) punitive damages if wanton or willful misconduct. Damages for 3 + 4 must be stated separately in the verdict.
128
If V injured and brings personal injuries action and then dies from the injuries, what happens?
Substitute personal representative and sue for wrongful death. Beneficiaries can't recover for V's pain and suffering, but can recover punitive damages from D if wanton or willful misconduct.
129
What if D dies before judgment in a wrongful death action?
No punitive damages from D's estate.
130
What is a VA declaratory judgment?
In CC, may get a declaration of rights where there's an actual controversy. Then, can seek consequential relief (damages, INJ).
131
How may a VA partition of realty action arise?
IN CC (Category A venue), may arise if 1) co-owner wants to be free of other owner OR 2) a creditor of one co-owner, who has a lien on interest in land, wants to have that portion of the land sold to satisfy his debt (can seek partition even if judgment against only 1 co-owner).
132
What are the three ways to partition realty?
(1) Division in Kind (divide among interested persons); (2) Partition by Allotment (one or more co-owner keeps land but has to pay off others); (3) Partition by Sale (court orders sale and co-owners split proceeds; only available if court finds other options not feasible; must instead find partition by sale promotes the interests of parties). It does not matter that the land may be more valuable as a single tract.
133
What is a VA action to establish boundaries?
IN CC (Category A venue), may seek declaratory judgment to establish boundaries between contiguous adjoining lands. Non-tortious, so no rents or damages. Order just describes the boundary.
134
What is a VA action for ejectment?
IN CC (category A venue), P is out of possession of realty and wants to eject the person possessing the land. Object to try title and obtain possession, so P must show a superior right to possession. P may also seek rents and profits in same action. D can get offset for improvements made to property.
135
What is VA action for unlawful detainer?
Available in CC and GDC in any amount (category A venue). Suit for landlord to oust tenant and recover possession of realty. Can recover back rent and damage to property. Does not bar later action for ejectment, trespass or later accruing rents.
136
What is a VA action for detinue?
Monetary recovery or specific personal property in GDC if under 25K or CC if over 4,500. P must have interest and right to immediate possession of property (usually when buyer in land sale fails to pay). P can get immediate possession by certified petition (sworn statement) describing property and right to it AND risk that property will be damaged, hidden, removed AND posting bond of twice property value. D can get possession back by posting same bond and giving notice to P.
137
What are the special rules for VA medical malpractice?
W/in 30 days of responsive pleading, may request a panel that stays the action. The panel decides the case, but parties can opt to resume the tort action. If case resumed, panel's opinion is admissible evidence but not conclusive.
138
What are the rules for enforcement of arbitration agreement and awards?
CC has jur to determine if arb agreement and to order arbitration. If K silent, court decide whether to arbitrate dispute. Party to arbitration may petition CC to confirm award into a judgment. Award can be vacated for fraud, corruption, undue influence or arbitrator acted to prejudice of a party or beyond his powers.
139
When do the SOLs apply?
Definitely in claims at law, and usually the rule is that equity follows the law. BUT there may be room for application of "laches" which will bar a P who has delayed unreasonably in suing to the prejudice of prospective D.
140
What is the general rule for when SOL starts to run?
When COA is accrued i.e. date of injury or breach even if P doesn't know it. EXCEPT: fraud, mistake or undue influence accrues when P discovers harm; malicious prosecution when underlying case ends; contribution when party pays more than fair share; malpractice does not run during continuous treatment or service.
141
What is the SOL for personal injury?
2 years. Theory of recovery doesn't matter.
142
What is SOL for personal torts?
2 years.
143
What is SOL for defamation?
1 year.
144
What is SOL for property damage?
5 years. BUT if it's an intermittent nuisance that starts and stops, there could be a different COA each time the nuisance starts up again.
145
What is SOL for property damage for sales covered by UCC?
4 years as to property on which there's breach of warranty. This only applies to the part that was under warranty, and the rest of the property damage gets the general 5 year SOL.
146
What is the SOL for fraud?
2 years from discovery of fraud.
147
What is the SOL for wrongful death?
2 years from the death. BUT barred if decedent injured more than 2 years before death and died from those injuries w/o ever bringing suit.
148
What is the SOL for contracts?
Written Ks 5 years; unwritten Ks 3 years.
149
What is the SOL for detainer?
3 years from detention.
150
How does D raise SOL defense?
Special plea (affirmative defense). Allege COA barred and D must prove. Not by demurrer because can't inject new facts.
151
What tolls the SOL?
SOL stops running if minority or of unsound mind. Otherwise, filing the case (not service) tolls the statute.
152
If tort against a minor, when does SOL begin to run?
Usually when minor turns 18 or is judicially emancipated. UNLESS medical malpractice--if kid 8 or older, SOL runs; if under 8, may sue until 10th birthday.
153
What if P files suit, SOL runs, and then P takes a nonsuit?
Right to refile w/in 6 mos. or limitations period, whichever is longer.
154
What is the special SOL rule with unknown drivers of motor vehicles?
SOL tolled for 3 years to give P a chance to discover D's identity. Moreover, if intended D has actual knowledge of action w/in SOL, amendment to name him after SOL runs may be deemed timely.
155
What is the SOL for counter and cross-claims?
If filed after SOL runs, SOL tolled for claims arising out of same T/O.
156
What is the SOL for impleader?
If P files case w/in 30 days of expiration of SOL, D may implead up to 60 days past the statute's expiration.
157
When may P decide to drop case and get a non-suit?
Right to do so once w/o prejudice unless any of the following are true at the time of the non-suit: 1) jury is in deliberation; 2) non-jury case submitted to ct for decision; 3) motion to trike evidence sustained or granted; 4) demurrer or special plea is fully argued and awaiting decision.
158
Can P take a nonsuit if D filed a claim in the case?
Only if D agrees OR D's claim can be adjudicated independently.
159
If P takes nonsuit, where must P refile the case?
In same court UNLESS it lacks jurisdiction or venue OR good cause shown to litigate elsewhere OR can file in federal court if there's federal SMJ. Must refile w/in 6 mos.
160
What is the VA rule for default?
Party is in default if he fails to respond to an affirmative pleading w/in allowed time. Court enters default automatically. Party waives notice to further proceedings (but counsel of record will be notified) and jury trial.
161
After default entered, what happens?
P moves for entry of default judgment. If damages are liquidated, judgment is entered. If damages are not liquidated, there is a hearing on damages (which can have a jury if P requests it).
162
What can D do at a hearing on damages?
Appear and litigate damages but not liability. May cross-Ws and offer evidence as to damages.
163
What is the VA rule for summary judgment?
Not available in divorce/annulment; no provision for using affidavits; depositions can be used only if all parties agree.
164
What is the biggest difference between federal and VA summary judgment?
In VA, merely pleading a fact can make it a triable issue.
165
When is there jury trial in CC?
Same as in federal court but based on state law not 7th Am: when there are some legal issues and some equitable issues, try legal issues to jury first. Judge is bound by findings of fact made by jury.
166
When must jury be demanded?
Written demand must be made w/in 10 days after service of last pleading raising the jury-triable issues. If no party demands jury, bench trial unless judge orders a jury.
167
What is the size of jury?
More than 25K at stake = 7 jurors. 25K or less = 5 jurors. If parties consent, may have 3 person jury.
168
What is the voir dire process like in VA?
Challenges for cause (bias or relation to party) are unlimited. Each side also gets 3 peremptories that must be exercised in a race and gender neutral way (jury selection is state action).
169
What is the rule for jury instructions in VA?
Instructions read to jury by court. Objections waived if not made before jury is charged.
170
What can and can't the judge allow the jury to do?
May allow jury to view premises if necessary to just adjudication; may allow exhibits into jury room. May NOT allow pleadings into jury room or give opinion as to credibility of Ws.
171
What can judge do w/ respect to Ws?
Judge has discretion to grant motion to sequester Ws (but not parties). If W sneaks into court even though sequestered, judge may still allow her to testify in her discretion.
172
When juries are used in equitable COAs, when are jury decisions binding or merely advisory?
Binding if jury decides facts regarding a special plea. Advisory: ct may refer an issue out of equity if finds conflicting evidence or if affidavit that case rendered doubtful by conflicting evidence of another party. A judge may abuse discretion by disregarding findings supported by substantial evidence even if advisory.
173
How is testimony given in GDC?
Testimony usually oral. In personal injury, party may present evidence of treatment of injury by a health care provider's report or hospital records. A written medical report may be admitted on 10 days notice.
174
In an action to recover damages to motor vehicle in excess of 2,500 in CC or GDC, how may evidence as to damages be admitted?
Itemized estimate or appraisal of the person who repaired the vehicle.
175
How is testimony given in CC?
For legal causes of action, usually by oral testimony (or deposition). For equitable COAs, evidence usually by deposition w/ no live testimony but oral if there's a jury.
176
What is the oral presentation of testimony called?
Ore tenus.
177
In CC, how can the court go about the use of commissioner?
In equity, may refer to a commissioner who assists judge in deciding case (on bar usually in partition of land cases where commish decides whether division of land is feasible). Send matters to commissioner by "decree of reference" that spells out what commissioner is to do. Usually, the commissioner determines facts and suggests conclusions of law.
178
When may a commissioner be used?
If all parties and court agree OR good cause on the facts of the case.
179
How does the commissioner work?
May subpoena Ws and take testimony. Makes a record of evidence she finds inadmissible and then files her report w/ clerk of CC and notifies counsel of record. Parties then have 10 days to file objection.
180
What does the commissioner's report do?
Assist but not bind judge. As to matters of fact, judge may make own findings but may be reversed for abuse of discretion if ignores facts supported by evidence. Commissioner gets no difference on matters of law.
181
What is a VA motion to strike the evidence?
Fxnal equivalent of JMOL. D moves at close of P's case. Does not estop D from introducing evidence. Procedural difference: Judge who grants motion to strike evidence then enters SJ.
182
If a jury verdict, must the decision be unanimous?
Yes. If not, hung jury, mistrial entered, and grant new trial.
183
What is the rule for relief that may be granted?
In VA, complaint caps the amount of recover; in fed ct, complaint is a cap only in default cases.
184
What is a quotient verdict and is it permissible?
When jury members decide to average their beliefs about how things are. NOT PERMISSIBLE: must reach figures/verdicts as a group. To find out about this, may ask about misconduct but not thought process.
185
What is a judgment v. a decree?
On legal causes of action, it's a judgment. On equitable COAs, it can be called a decree.
186
After judgment, what motions may be filed in GDC?
Seek rehearing no later than 30 days after entry of judgment. Court must rule on motion no later than 45 days of entry of judgment (not entry of motion).
187
In CC, how long does the case stay in control of CC after judgment?
21 days after entry. Called "in the breast of the court." During this time, court may suspend, vacate or modify the judgment or decree.
188
What happens after the "in the breast" period has ended?
Court loses jurisdiction even if the motion was taken under advisement. Even if a motion filed on day 20, court loses jur unless suspends judgment to get more time.
189
What is the exception to the 21 day in the breast period rule?
May vacate default judgment or decree on ground of fraud up to 2 years after entry.
190
What is the motion to set aside verdict as contrary to evidence?
Renewed JMOL. Not required that party had moved to strike the evidence first.
191
What is the motion for new trial?
Same as in fed ct. Move w/in 21 days of judgment or decree on grounds that make us sufficiently worried about reliability of outcome such as 1) prejudicial error/misconduct; 2) misconduct of party/juror/attorney; 3) new evidence that couldn't have been produced at first trial w/ due diligence and is decisive; 4) unfair surprise that has a material outcome; and 5) excessive or inadequate damages.
192
If a party wants to contend that a verdict is too high or too low, what is the test for new trial?
Does the verdict shock the conscience? If yes, retrial on all issues if damages not separable from liability but retrial only on damages if liability well established.
193
What is the VA rule for remittitur?
If damages are excessive, judge can tell P to accept a reduced award or she will order new trial. P may 1) accept remittitur w/o protest; 2) accept under protest and try to appeal order to remit; 3) reject w/ exception to order of new trial and go through new trial and if still aggrieved appeal on ground trial was in error.
194
What is VA rule for additur?
If liability is clear but damages are low, judge can tell D to pay more or submit to new trial. If either party rejects the court's offer, must order new trial. There is no additur in federal court because violates 7th Am.
195
What is a bill of review?
For equity COAs, party can seek review of final decree for up to 6 mos. after entry. Can file w/o leave of court to correct errors apparent on face of record. Can file w/ leave of court based on new evidence.
196
What is the VA final judgment rule?
Same as in federal practice.
197
When may there be a pretrial interlocutory ruling in CC in VA?
Party must request AND court must find (certify) 1) substantial ground for difference of opinion; 2) no clear VA appellate procedure; 3) issue is dispositive to a material aspect of case; AND 4) ct and parties agree it's in parties' best interest to seek interlocutory review.
198
When may partial final judgment appeal be granted in VA?
In cases involving multiple parties, may appeal if 1) trial court enters partial final judgment on claim; 2) interest involved are separate and distinct from those remaining; 3) results of appeal on partial final judgment won't affect decision in the remaining COAs; AND 4) results of remaining issues can't affect disposition of the COA determined in the partial final judgment.
199
When may there be an appeal from GDC to CC?
Final judgments involving more than $50. CC hears de novo. Must file notice of appeal in GDC w/in 10 days of entry of judgment, post bond and pay writ tax/costs in GDC no later than 30 days of entry of judgment, and seeking rehearing doesn't alter this time table.
200
When is there a right to appeal from CC to VA Court of Appeals?
Final judgments and rulings granting or denying injunctions in domestic relations cases and in some admin matters. Court of Appeals plays no role in other civil cases. Must file notice of appeal in CC w/in 30 days of appealable decision.
201
When may a case be appealed to the VA supreme court?
In general civil cases worth at least $500 on appeal. SC jurisdiction is discretionary.
202
If you want to appeal, how must issues be preserved?
Make exception in trial court with "reasonable certainty at the time of the ruling."
203
What is the procedure for appealing from CC to VA SC?
File notice w/ clerk of CC no later than 30 days after appealable judgment or decree. Must mail or deliver a copy of the notice of appeal to counsel of other parties which includes 1) stating whether you will file transcript or written summary of trial and 2) if transcript, certify you've ordered it. Clerk prepares record for transmission to VA SC.
204
What are the weird rules regarding when the transcript of the trial is part of the record?
Only if filed w/ clerk of CC no later than 60 days of the entry of judgment or decree. Incumbent on appealing party to do this. Must notify opposing counsel w/in 10 days of filing. In lieu of transcript, can prepare written statement of facts, testimony, and incidents of case filed w/in 55 days of judgment or decree and mailed to other counsel.
205
What if a party objects to the transcript or to the written statement because it is erroneous or incomplete?
Any party may object, and court may correct errors in either. Judge must sign, and the change becomes part of the record.
206
How many copies of petition of appeal must be filed with SC and when must they be filed?
7 copies w/in 3 mos. after appeal of decree. Must contain: parties, assignments of error w/ particularity, certificate of whether an oral hearing on petition is desired (only counsel for appellant heard). Appellee may file brief in opposition and/or cross-appeal.
207
How does the VA SC rule on a petition for appeal?
If SC denies petition, appellant may request rehearing w/in 14 days of notice of denial. If SC grants appeal, it sends a certificate of appeal to all parties. They then file briefs and have an argument on the merits.
208
If appeal petition granted in SC, what must appellant file?
Appeal bond w/in 15 days. If bond not in proper amount, other party may object w/in 21 days of certificate. If bond not fixed, court may dismiss.
209
When determining the preclusive effect of a prior judgment, the law of which system applies?
The law of the system that decided case 1.
210
If the judgment in case 1 has been appealed or time for appeal hasn't expired, is the judgment entitled to res judicata or collateral estoppel effect?
No under VA law.
Yes under fed law.
Must have a final judgment entered in order to apply these doctrines!
211
If there has not be an final judgment but a case is filed in two courts, what may happen?
Federal court might abstain and stay the case, but odds are this won't happen.
212
What is res judicata?
Only get to sue on a COA once. Must seek all relief under this COA in a single case or it is waived.
213
What are the requirements for res judicata?
1) Case 1 and Case 2 must be brought by same claimant against same D; 2) Case 1 must have ended in valid final judgment on the merits (deemed on merits unless based on Jur, venue, or indispensible parties); 3) Case 1 and Case 2 involve same COA.
214
When does the case involve the same COA for res judicata purposes?
In federal court, same COA if same transaction, occurrence, or conduct. VA law is same as federal but there's an exception when personal injury and property damage arise form same T/O they are different COAs.
215
What is collateral estoppel?
Precludes relitigation of a particular issue that was litigated and determined in case 1 w/ effect that it is deemed established in case 2.
216
What does collateral estoppel require?
1) Case 1 ended in valid final judgment on merits; 2) issue presented in Case 2 was actually litigated and determined in Case 1; 3) the issue was essential to judgment in Case 1; 4) asserted against one who was a party to Case 1.
217
Who may assert collateral estoppel?
Mutuality view (historically) said only one who was a party to Case 1 can assert. Non-mutuality view (modern trend) allows collateral estoppel to be asserted by someone who wasn't a party to first case.
218
What is nonmutual defensive collateral estoppel?
Under federal law, if P tries to sue a new D after losing against D1 in Case 1, collateral estoppel will bar relitigation of issue if P had a full chance to litigate in Case 1 even though D2 was not a party to Case 1. VA has never adopted this.
219
What is nonmutual offensive collateral estoppel?
If D2 sues P in Case 2 and seeks to admit a finding from Case 1 to which D2 was not a part, federal law says it's okay as long as not unfair circumstances i.e. P had full and fair chance to litigate in Case 1, P could foresee multiple suits, D2 couldn't have joined Case 1, no inconsistent judgments. Can't do this under VA law!
