Virginia Civil Procedure

Question 1

Virginia’s General District Courts have exclusive subject matter jurisdiction for claims up to and including:

Answer 1

$4,500 not including any interest and attorney’s fees demanded

The Virginia General District Courts have “[e]xclusive original jurisdiction of any claim to specific personal property or to any debt, fine or other money, or to damages for breach of contract or for injury done to property, real or personal, or for any injury to the person that would be recoverable by action at law or suit in equity, when the amount of such claim does not exceed $4,500 exclusive of interest and any attorney’s fees contracted for in the instrument. . .” Va. Code 16.1-77

Question 2

Appeals from final judgments in Circuit Court civil cases

Answer 2

are as of right to the Court of Appeals, no petition is necessary.

Question 3

At the end of a Virginia Circuit Court trial, when the losing party wishes to file a motion to set aside the verdict, how long do they have to do so?

Answer 3

Within 21 days of the entry of judgment.

After entry of a final judgment, a case “rests in the breast of the court” for 21 days. After the 21 day period, the trial court has no further jurisdiction over the case. So the motion must be filed within 21 days of the court entering its judgment.

Question 4

Jim wants to appeal his personal injury case from the final judgment in the Virginia Circuit Court. Select all of the things below that Jim must do to perfect his appeal.

Answer 4

As of January 1, 2022, all civil appeals go first to the Virginia Court of Appeals as of right. No petition is required.

File a Notice of Appeal in the Circuit Court Clerk’s Office within 30 days of entry of the Circuit Court’s Final Order

Post a bond for costs in the trial court

Make any transcript part of the trial court’s record by filing it within 60 days of entry of the final order, or file a “statement of the incidents of trial” within 55 days from the entry of the final order with notice to counsel of presenting it to the judge for certification.

File his appeal brief in the Court of Appeals.

Question 5

A notice of appeal is filed

Answer 5

in the Circuit Court.

Question 6

A notice of appeal must be filed

Answer 6

within 30 days from the date of entry of the final order.

Question 7

To appeal a civil judgment from a Virginia Circuit Court, a party must file a notice of appeal in the Circuit Court and then:

Answer 7

File an Appeal Brief in the Virginia Court of Appeals

As of January 1, 2022, all civil appeals go first to the Virginia Court of Appeals as of right. No petition is required. Sidenote: A Circuit Court “Certificate of Approval” is not a thing.

Question 8

After entry of a final judgment, a case

Answer 8

“rests in the breast of the court” for 21 days. After the 21 day period, the trial court has no further jurisdiction over the case.

Start counting from the day the court enters judgment

If the day falls on a day the court is closed, then the next day it is open

Question 9

Civil appeals are

Answer 9

as of right to the Virginia Court of Appeals.

Question 10

A Party who loses in the Court of Appeals

Answer 10

may petition the Virginia Supreme Court to hear the case.

Question 11

If a petition for a civil appeal is incorrectly filed in the wrong appellate court,

Answer 11

that Court will transfer the case to the correct appellate court.

Question 12

When a potential juror is related to a party, has any interest in the case being tried, or has expressed an opinion or bias in the matter,

Answer 12

he can be stricken from the panel for cause

It would be reversible error for a court to force a party to use one of their peremptory strikes when the juror should be stricken for cause

Question 13

Issues (“assignments of error”) raised on appeal for the first time will

Answer 13

will not be considered by the appellate court unless the “ends of justice” exception applies

In general, trial counsel must have objected to the issue, and given the trial judge a chance to rule on it, in order for that issue to be considered on appeal.

The “ends of justice” exception is applied VERY RARELY (almost never happens) in extreme cases where the court must correct a grave injustice. (e.g. in criminal law where someone’s life is at stake because of this error)

Question 14

No one can waive

Answer 14

subject matter jurisdiction.

Question 15

Subject matter jurisdiction - waivable?

Answer 15

Subject matter jurisdiction may never be waived. This type of jurisdiction is granted only by the General Assembly.

Question 16

Depositions are not admissible in Virginia state courts for

Answer 16

Summary Judgment in cases for compensatory damages. However, replies to Requests for Admission, even when the content is based on responses provided in a deposition, are admissible as long as:

They don’t directly reference the deposition

AND

They don’t require the deponent to admit or deny that he gave certain testimony in the deposition.

Question 17

Which one of the following is admissible in support of a Motion for Summary Judgment made as part of a tort claim for compensatory damages in a Virginia Circuit Court?

Answer 17

Admissions made as part of a reply to discovery Requests for Admissions

Discovery depositions are not admissible as part of a Summary Judgment Motion made on a compensatory damages claim. However, a party’s responses to Requests for Admissions can be submitted in support of a Motion for Summary Judgment, even though they are based in whole or in part on the discovery depositions. And they may include facts learned in the deposition, so long as they do not directly reference the deposition or require the deponent to admit that he or she gave specific testimony at the deposition. See Virginia Code Sec. 8.01-420 and Rule 4:20, which were recently amended to reflect this change.

Question 18

Plaintiffs may take one nonsuit as a matter of right unless

Answer 18

1) a motion to strike has been sustained, 2) the jury has retired from the bar, or 3) the action has been submitted to the court for decision.
* NOT the first witness has been sworn OR a jury has been empaneled

Question 19

If a Plaintiff wants to take a second nonsuit, she can only do so

Answer 19

at the discretion of the court after reasonable notice is given to all parties. Va. Code Ann. § 8.01-380(B).

Question 20

A nonsuit is a

Answer 20

voluntary withdrawal or dismissal of a lawsuit by the party that filed it that allows the party to bring a second suit on the same cause of action. It results in a termination of the case “without prejudice,” leaving open the possibility that the plaintiff will bring the same claims a second time. This is very unique to Virginia, and frequently tested.

Question 21

Statute of Limitations for Oral Contracts

Answer 21

In actions upon any unwritten contract, express or implied, the action
must be brought within three years after the cause of action has accrued.

Question 22

The cause of action for breach of contract accrues when

Answer 22

the breach occurs.

Question 23

Generally, the statute of limitations for written contracts under Virginia law is

Answer 23

five years.

Specifically, in actions
on any contract that is in writing and signed by the party to be charged thereby, the action must be brought within five years
after the cause of action has accrued.

Question 24

However, in actions upon a contract that is in writing and

not signed by the party to be charged, the action must be brought within

Answer 24

three years after the cause of action accrued.

Question 25

Every action for injury resulting from defamation must be brought within

Answer 25

one year after the cause of action accrued.

Question 26

When does a defamation cause of action accrue?

Answer 26

Under Virginia law, the right of action shall be deemed to accrue and the prescribed period begins to run from the date injury is sustained, and not when the resulting damage is discovered. Va. Code Section 8.01-230. For
defamation actions, the cause of action accrues on the date the defamatory acts occurred.

Question 27

Defamation Statute of Limitation Exception

Answer 27

Where a publisher publishes anonymously or under false identity on the internet.

STATUTE: If a publisher of statements actionable under this section publishes anonymously or under a false identity on the Internet, an action may be filed under this section and the statute of limitations shall be tolled until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered. Va. Code Section 8.01-247.1.

Question 28

Intervention requires

Answer 28

leave of court, and the court has considerable discretion in granting or refusing such a motion to intervene in a case.

Question 29

Detinue is an action

Answer 29

for recovery of personal property or value thereof.

Question 30

A sheriff may only serve the summons and complaint in

Answer 30

her county/city or in a contiguous county/city. See Va. Code §8.01-295.

Question 31

Service - papers must be served by

Answer 31

“any person of age 18 years or older and who is not a party or otherwise interested in the subject matter of the controversy.” See Va. Code §8.01-293 (A)(2).

Question 32

How to serve a foreign corporation?

Answer 32

Process may be served on “any officer, director, or registered agent of the foreign corporation.” See Va. Code §8.01-301.1.

Question 33

Except in cases of divorce or annulment, improper service of process can be cured if

Answer 33

D actually and timely received it (within a year of filing the lawsuit)

Question 34

Statute of Limitations for Personal Injury Cases

Answer 34

“Every action for personal injury, whatever the theory of recovery,…shall be brought within two years after the cause of action accrues.” Va. Code §8.01-8.01-243[A].

Question 35

What type of cases fall into Category A (Preferred) Venue?

Answer 35

a. local actions
b. wills
c. writs
d. injunctions

Question 36

What are local actions in regard to Category A (preferred) venue?

Answer 36

These are cases for the recovery, partition or judicial sale of land, to establish boundaries to land, for unlawful entry or detainer of land (including trespass), to subject land to a debt, to quiet title to land or remove an encumbrance on land.

Question 37

Where is Category A (preferred) venue for local actions?

Answer 37

Where the land or any part thereof lies

note: this rule has been abolished in federal court

Question 38

What is the Category A (preferred) venue rule for wills?

Answer 38

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.

Question 39

What is the Category A (preferred) venue rule for writs?

Answer 39

For mandamus (e.g., forcing an officer to perform a ministerial act), prohibition (e.g., stopping lower court from exercising jurisdiction) or certiorari (e.g., basically for review of zoning decisions), lay venue at the place where the proceeding to which the writ relates is located.

Question 40

What is the Category A (preferred) venue rule for injunctions?

Answer 40

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.

Question 41

Anything not falling within Category A Venue can be brought where?

Answer 41

In a Category B (Permissive) venue

Question 42

What choices are appropriate in a Category B (Permissive) venue?

Answer 42

Where D resides or has her principal place of employment; OR
Where the cause of action (or any part thereof) arose (In K where K was entered AND where K was to be performed); OR
Where D has a registered office or appointed agent; OR
Where D regularly conducts substantial business activity (but the case itself must have some practical nexus with this place); OR
In case to recover personal property, where the property is located; OR
In case against fiduciary appointed under court order, where fiduciary qualified

Question 43

A defendant must object to venue in what timeframe? What must a defendant also set forth?

Answer 43

A defendant must object to venue within 21 days after service of process commencing the action (or within the period of extension of time for filing responsive pleadings). A defendant must also set forth where he believes venue to be proper.

Question 44

If a plaintiff’s cause of action does not set forth a valid cause of action again against a defendant as a matter of law how should they seek dismissal from the case?

Answer 44

If a plaintiff’s cause of action does not set forth a valid cause of action again against a defendant as a matter of law, the defendant should file a demurrer, which tests the legal sufficiently of the complaint.

In addition to failure to state a cause of action, it can also be used for misjoinder of claims, lack of subject matter jurisdiction, and lack of personal jurisdiction.

Question 45

Standard of Review Appellate Court Uses for Demurrer

Answer 45

The judge’s ruling on the demurrer is a ruling of law, not fact, and the appellate court will review that ruling de novo, without any deference to the lower court’s ruling.

Question 46

How to determine whether a court was correct in granting a Motion for an Extension of Time to File an Answer?

Answer 46

Under Rule 1:9, the trial court’s given the discretion to permit the late filing of responsive pleadings, including when the time for filing responsive pleadings has passed.

Question 47

How to determine whether a court was correct in denying a Motion for Default Judgment?

Answer 47

Under Rule 3:19, the trial court’s given the authority, for good
cause shown, to grant relief from a default.

Question 48

Is the mitigation of damages an affirmative defense that must be raised in a responsive pleading?

Answer 48

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.

E.g. Paul should argue that “mitigation of damages” is an affirmative defense which should be pleaded by Dave. Even if it was not required to be pleaded by Dave, the court should recognize that raising the defense now is unfair to Paul,
as it comes too late in the litigation process, and Paul is now prejudiced by not having the opportunity to conduct discovery, or present evidence, expert or otherwise to address the issue.

Dave should argue that 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.

The court should deny Paul’s Motion in Limine for the reasons set
forth in Dave’s argument above. If the evidence supports the instruction, it should be a defense to be considered by the jury.

Question 49

When must responsive pleadings be filed? Is a plea a responsive pleading?

Answer 49

Rule 3:8(a) requires responsive pleadings to be filed within 21 days of service on the defendant. It further specifies that a plea is a responsive pleading.

Question 50

When must a SOL defense be raised?

Answer 50

Va. Code §8.01-235 specifies that the issue of failing to file within the
applicable statute of limitations can be raised only as an affirmative defense and set forth in a responsive pleading and prohibits the s/l being raised by demurrer. There’s no limiting requirement that the s/l defense be raised only in
an answer.

Question 51

When does the statute of limitations start to run on Minor’s cause of action?

Answer 51

When minor turns 18 or is judicially emancipated

Question 52

Summary judgment standard

Answer 52

Same standard as in federal court: no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

Who can move for summary judgment? Any party

Question 53

Special minor rules regarding SOL for medical malpractice cases:

Answer 53

Minority does not toll the statute in medical malpractice if the child was age eight or older when the cause of action accrued. So, the statute starts running when the cause of action accrued and must be asserted within two years.

– What if the child was under age eight when the medical malpractice cause of action accrued? May sue until his tenth birthday

Question 54

Can a party base a motion for summary judgment on deposition testimony?

Answer 54

Only if the parties agree

Question 55

SOL for fraud claims

Answer 55

Actions for damages for fraud carry a two-year statute of limitations.

Question 56

A fraud accrues when

Answer 56

the plaintiff becomes aware of or should have become aware of the fraud.