VA Civil Procedure Essay Rule Statements Flashcards
an appeal from a divorce decree is
an appeal of right to the court of appeals
to perfect an appeal of right, the appellant must
file a notice of appeal with the circuit court clerk, stating whether a transcript or statement of incidents of the trial is to be filed
appeal bond, filing fee of $50, and certificate stating names and info of opposing counsel, copy mailed to opposing counsel, and transcript has been ordered from the court reporter
notice of appeal must be filed with the clerk of the trial court within
30 days after entry of final judgment, and copies delivered to opposing counsel at same time
On appeal, transcript must be filed with ____ within ____ days after final judgment, and a notice of the filing must be sent to other counsel and clerk of trial court within ___ days
clerk of the trial court, 60, 10
the appeal bond to the court of appeals must be filed with the trial court
simultaneously with the notice of appeal
on appeal to court of appeals, the filing fee is paid to
the clerk for the court of appeals and due when notice of appeal is presented
the trial court rulings preserved as a basis for reversal on appeal (in the court of appeals) are those that
have been objected to, with the grounds given for the objection, except for good cause shown or to enable the court of appeals to attain the ends of justice
the doctrine of res judicata
precludes parties from relitigating the same cause of action when a valid, final judgment was previously entered
Res judicata encompasses four preclusive effects, which are
merger, direct estoppel, bar, and collateral estoppel
the doctrine of collateral estoppel
precludes parties to a prior action from litigating in a subsequent action any factual issue that was actually litigated and essential to a valid, final judgment in the prior action
For the doctrine of collateral estoppel to apply, four requirements must be met
1) the parties to the prior and subsequent proceedings, or their privies, must be the same
2. the factual issue sought to be litigated actually must have been litigated in the prior action
3. the factual issue must have been essential to the judgment in the prior proceeding
4. the prior action must have resulted in a judgment that is valid, final, and against the party against whom the doctrine is sought to be applied
with res judicata and collateral estoppel, they only apply if
a litigant would have been bound by the prior litigation of an issue if it reached the opposite result
forum designation clauses are
enforceable when not against public policy, prima facie valid unless the party challenging enforcement establishes that such provisions are unfair or unreasonable, or are affected by fraud or unequal bargaining power
permissible places of venue
Defendant’s ppb, regularly conducts business activities, cause of action, delivery of goods were received
no amendment may be made to any pleading after it is filed except
with leave of court, liberally granted
the exercise of peremptory challenges to prospective jurors must be
on racially or ethnically neutral grounds
the purpose of a demurrer is
to test the legal sufficiency of a plaintiff’s pleading
in a civil case originating in the circuit court, an appeal can only be taken of
a final judgment entered by the trial court
a ruling upon a demurrer is not a final order unless
it dismisses the case
can challenge judge’s order granting nonsuit by
filing a written petition for appeal, or move for trial court to reconsider (they have 21 days)
the right to take a nonsuit is absolute as long as it is
done before 1) a motion to strike the evidence has been sustained
2) the jury commences deliberation
3) or the case is submitted to the judge
an order of a nonsuit is a final, appealable order, but only if
a dispute exists as to whether the trial court properly granted the motion for a nonsuit, and filed within 30 days of the nonsuit being given
declaratory judgment
statutory action seeks to obtain a declaration of rights with or without consequential relief
jury trial may be had on specific fact questions
a declaratory judgment aciton is not available unless
standard common law remedies of legal or equitable relief are not available or workable, and an actual controversy must exist, can’t be an advisory opinion
if a declaratory judgment determines that a person’s property has been taken or damaged
the court may appoint commissioners to determine the compensation, provided no aciton has been taken to compensate or determine compensation after 60 days
unlawful detainer
adjudicates the right of possession only and is available in both general district courts and circuit courts, does not determine who has title to the property
unlawful detainer action lies
where forcible entry is made upon lands, or where the entry was peacable, but the tenant detains the possession of land after his right has expired, without the consent of the person who was entitled to possess
bill to quiet title
typically used to adjudicate title only. P not required to be in possession to maintain the action, but no provision for restoring possession to the plaintiff or for damages for withholding possession
ejectment
try title and obtain possession of a piece of land, together with damages for withholding possession.
to succeed on an action for ejectment, plaintiff must
be out of possession and show a superior right to possession
a party in default is not usually entitled to
notice in civil actions, even in divorce actions
standing for private nuisance if
occupy or own property
to maintain a suit for private nuisance, you must
suffer special or peculiar damage distinct from that of the public
a motion craving oyer
petitions the court to include in the record documents necessary to reach a decision
the virginia uniform arbitration act provides for proceedings to compel or stay arbitration upon the application of
any party showing an agreement to arbitrate
during the arbitration proces, the court retains jurisdiction to
decide any disputes that arise, such as the scope of arbitration
an arbitration award may be vacated if
within 90 days 1) procured by corruption, fraud, or other undue means
2) evident partiality , corruption, or misconduct of the arbitrator
3) arbitrators exceeded their powers
4) arbitrators refused to postpone a hearing upon sufficient cause being shown, refused to hear evidence material to the cotroverysy, or otherwise conducted a hearing contrary to the act
5) absnece of an arbitration agreement and party objected
an abitration aware may be modified if
within 90 days 1) evident miscalculation of figures or eviddnece mistake in identification
2) arbitrators have awarded on a matter not submitted and the award may be corrected to make it one on a matter properly submitted,
3) an award is imperfect in form
a defendant may plead the SOL only in
an affirmative defense specifically set forth in a responsive pleading
if any action is commenced within the prescribed limitation period and for any cause abates or is dismissed without determining the merits
the time such action is pending is not computed as part of the period within which the action may be brought, and another action may be brought within the reamining period
to perfect appeal from circuit court to supreme court,
1) file notice of appeal with trial court and mail to opposing counsel within 30 days of judgment
2) notice must contain a statement whether any transcript or statement of facts, testimony, will be filed
3) if transcript is to be filed, must certify it has been orderd from the court reporter
4) transcript must be filed in office of court of trial court within 60 days after entry of judgment, give notice of filing within 10 days to opposing counsel and clerk of trial court
5) file 7 copies of appeal with virginia supreme court and mail to oppsoing counsel within 3 months of judgment
6) pay filing fee
petition for appeal must include
assignments of error, choose wehther she wasnt oral argument or reply brief
if appeal is granted
issued a writ of appeal by the court, file an appeal bond with the virginia supreme court
appeal rehearing
written notice within 10 days, pdf copy filed with clerk within 30 days, 3 copies delivered to opposing counsel
a plaintiff may not later nonsuit claims that have neen
submitted for decision or dismissed by the trial court
prayer for a temporary injunction must show
1) the injury he would suffer would be irreparable if denied
2) defendant would suffer no irreprarable injury or it would be less than his
3) substantial likelihood of prevailing on the merits
4) no public policy problmems
appeal of decree in equity
within 6 months bill of review, if new evidence discovered that wasn’t attaibanle before
appeals to a circuit court from a general district court must be filed within
10 days of entry of judgment
a court will grant a new trial if
1) prejudicial error or misconduct by court
2) misconduct of a party, attorney, juror, thrid party
3) new evidence not lack of due diligence
4) unfair surprise
5) excessive or inadequate damages
an appellant whose petition for appeal is granted by the supreme court must file an appeal bond of
$500 or other sum they require within 15 days of certificate of appeal
no appeal will be dismissed because of a defect in any bond unless
1) the appellee within 21 days files a statement in writing of the defects of the bond
2) the appellant fails to corret the defects within 21 days after statement is filed
exceptions when court can set aside its order after 21 days
fraud, clerical mistakes, accord and satisfaction, void judgment, and failed notice to counsel of final order
What to say in appeals question
To perfect her appeal, Defendant’s attorney must first file a notice of appeal with the trial court within 30 days of entry of the order appealed from. A copy must, at the same time be mailed or delivered to Plaintiff’s counsel. Her notice must state whether any transcript or written statement of the incidents of the trial is to be later filed, and if a transcript is to be filed, the notice must also certify that a copy has been ordered from the court reporter.
Defendant’s attorney must also file the petition for appeal with the clerk of the Virginia Supreme Court with a required filing fee, within three months from the entry of the order appealed from, and serve a copy of the petition to Plaintiff’s counsel. Her petition must contian a specific listing of the grounds for appeal, called assignments of error. There are other formal requirements for the petition filing, including the contents, statements of questions presented, and similar issues. She must also include a certificate providing information about the other party to the suit and whether an oral argument is desired.
If the Supreme Court of Virginia does not grant the appeal, Defendant’s attorney will have to take further steps to perfect the appeal, adhering to all timetables and rules for notice and submission for either transcripts or written statements in lieu of transcripts. Defendant must then submit a brief within 40 days after the date of certificate for appeal and adhere to service requirements of the brief to Plaintiff’s counsel.
a defendant who appears at a damages hearing after default may
1) object to plaintiff’s damages
2) cross-examine plaintiff’s damages witnesses
3) offer evidence on damages
4) participate in jury selection
5) submit jury instructions on damages
6) make oral argument on damages issues
a defendant is in default if
he fails to timely file a responsive pleading within 21 days
a defendant in default is not entitled to notice of any further proceedings in the case, including notice to take depositions, except
written notice of further proceedings must be given to counsel of record, if any
if the party claims that no service of process was made, he must
file a special appearance only challenging the courts jurisdiction over it, no other responsive pleading may be filed with it
if in default, defendant can
make a motion for leave to file a late pleading, if the defualt has yet to turn into a judgment. Any good cause.
in order to confer personal jurisdiction over nonresidents,
1) there must exist certain causes of action that arise from activities engaged in by them or resulting from ownership of propert y byt them in Virginia, and 2) the nonresident defendant must have knowingly nentered a transaction tht involes contact with Virginia
juror testimony and affidavits are
not admissible. Strong policy of avoididng inquiry into how the jury conducte dits deliberations, grant of new trial is restricted to what they did outside the jury room, not in it
exception where what jurors did inside jury room can lead to new trial
caused a failure of justice, but must be used with great caution and only in exceptional cases
if a party fails to request a poll of the jury when the verdict was returned and announced
later attempts to argue it was not unanimous are barred
virginia will not require a new trial if the violation of a no-discussion order is
so minor as to be harmless in the context
a court may find damages awarded by a jury are excessive if the amount
shocks the conscience of the court in light of the proof actually adduced about injuries suffered by the plaintiff, so great to create the impression the jury has been motivated by passion, corruption, or prejudice, or misconceived or misconstrued the facts or the law
in an order for remittitur
trial court must expressly state the factors considered, or the verdict may be reinstated on appeal, in addition, amount must bear reasonable relation to damages shown by evidence at trial in light most favorable to plaintiff who prevailed
in considering reduction of punitive damages the court must consider
1) reasonableness between the damages sustained and the amount of the award
2) measurement of punishment required
3) whether the award will amount to a double recover
4) the proportionality between the compensatory and punitive damages
5) the ability of the defendant to pay
if corut order a remitittur, plaintiff may
accept it subject to protest and appeal, refuse to accept and new trial
in the case of an order for a new trial, if the defendant’s liability has been clearly established by the evidence, the new trial may be
limited to the issue of damages. However, if the award is so large it suggest liability was undue sympathy or bias, new trial
neither party to an agreement to arbitrate has the right to revoke the agreement unless
there are sufficient grounds present that would serve to revoke or annul any contract
sale of lands of persons under disability
file complaint in circuit court by a fiduciary of any person ahving an interest in the proceedings, against the person under a disability, all other potential parties in interest must be joined as defendants if they are not already palnitffs, and all those who would be heirs or distributees of the persons under disability upon her death must be joined as well
must prove that the interest of the plaintiff will be promoted and the rights of not other person will be violated by a sale iof the property
in cases where recovery is sought for damage to a motoro vehicle, they may be proved by
an itemized statement sworn to by a person who 1) is repair person qualified, 2) name of his business, 3) length of thim he’s been doing it, under oath.
over $2,500, must mail copy of affidavit to opposing party at least 7 days before trial
in personal injury cases, medical evidence may be presented through
a written medical report, notice of intent given to other party 10 days before trial, report must 1) sworn, 2) he trreated the party, 3) information is. accurage, 4) costs are accurate, 5) hospital record accompanied by sworn statement of the person who had custody that its’ acfurate
Every pleading, written motion, or other paper of a party represented by an attorney must be
signed by the attorney, and his signature means that 1) he read it, 2) according to his info and belief, well grounded in fact and warranted by existing law or agurment for extending or modifying law, 3) not interposed for any improper purpose
if the jurisdiction is based on federal question, when a claim or cause of action that is not otherwise removable is joined with the federal question claim,
the entire case may be removed, and the federal court will sever and remand those claims over which original or supplemental jruisidction does not exist
procedure for removal
file notice of removal which contains a short statement of the grounds for removal and copies of all process, pleadings and orders
within 30 days of being formally served
a petition in detinue must
describe the kind, quantity, and estimated value of specific perosonal property, the basis of claim to recover the property, bond payable to defendant for at least double the amount of the FNMV of the property
the appellant’s opening brief includes
) a brief statement of the nature of the case and of the material proceedings in the trial court, 2) a statement of the errors assigned on the appeal, with reference to the transcript, written statement, or other document where each assigned error was preserved n the trial court, 3) a statement of the facts, 4) a statement of the principles of law that govern the case, and 5) a short conclusion that states the relief requested.
business transaction under long arm
single act, no minimum dollar amount
the borrowing statue applies when
an action is brought in Virginia on a contract governed by the law of another state, and it requires that the shorter of the two states’ limitations periods be applied
absent the stipulation of parties, summary judgment in Virginia may only be based on
pleadings and admissions, not deposition testimony
analysis VA uses for conflict of laws issues involving contracts
1) determine whether the parties choose the governing law in their contract
2) if they didn’t, court will inquire if it revolves around UCC or usury
3) if UCC, apply law of forum, as long as it has appropriate relation to the transaction
4) if usury, apply law of the state that will sustain the validity of the transaction, as long as the state has some relation to that transaction
5) if neither, first restatement approach (validity and interpretation of contract governed by place of contracting, questions regarding details of performance are governed by the law of the place of performance)
how to remove a case to federal court
1) file a notice of removal containing a short and plain statement of the grounds for removal and signed under rule 11 in the federal district court district in which the action is pending
2) include copy of all process, pleadings, and orders served
3) send copy of notice to other parties and to circuit court
4) within 30 days after receipt of pleading
