Virginia Civil Procedure Flashcards
Personal Jurisdiction: 2 step process
- Does Virginia law authorize personal jurisdiction?
- Is Personal Jurisdiction constitutional?
How is General Personal Jurisdiction established?
- Defendant served in VA
- Defendant domiciled in VA
Virginia’s long arm status requires the claim arise in which ways? (7 ways)
1st way: The D/s act/omission AND damage occurred in VA
2nd way: The damage occurred in VA but D’s act/omission did not. Require (1) regularly does or solicits business in Virginia or (2) engages in any other persistent course of conduct from which it derives substantial revenue from goods used in Virginia.
3rd way: Claim relates to real property in VA
4th way: D does business in VA and claim relates to that business
5th way: Breach of warranty causes injury in VA
6th way: Domestic relations cases (divorce, spousal/child support)
7th way: Nonresident Motorist Act
What is the Nonresident Motorist Act
Allows PJ over the owner or operator of a motor vehicle involved in an accident in Virginia.
When is Personal Jurisdiction constitutional?
When defendant has “such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice”
Circuit Court: What jurisdiction do they have over claims?
General Jurisdiction
- They can hear any civil action except those for which exclusive jurisdiction is vested in another court
GDC: What jurisdiction do they have over claims?
Statutory jurisdiction and basically for causes of action at law (not equitable claims)
When does GDC have exclusive jurisdiction
For monetary claims or claims to specific personal property of $4,500 or less
GDC: What are four general characteristics?
- Less formal
- No discovery
- No jury
- No injunctive relief
GDC: What is the amount in controversy generally?
≤ 25,000
GDC: What is the amount in controversy involving injury to persons?
≤ 50,000
GDC: What is the amount in controversy involving attachment cases?
≤ 25,000
GDC: When can court not hear attachment cases?
If attachment involves realty, goes to circuit court
GDC: What is the amount in controversy for interpleader cases?
≤ 25,000
GDC: what type of interpleader case can GDC hear in any amount?
Earnest money deposit in land sale contract
GDC: What is the amount in controversy for Distress claims (rent due; unlawful entry or detainer)
No cap
Is interest and/or attorney fees included in determining amount in controversy?
No
What happens if GDC loses if jurisdiction (by amendment)?
It must transfer the case to circuit court.
Requirements for motion to amend and transfer from GDC
- Motion to amend and transfer must be made 10 or more days before trial (unless good cause is shown)
- Plaintiff pays filing and other fees to the clerk of the circuit court
NOTE: Same rules apply for a case filed in circuit court in which PLA moves to decrease the amount of the claim to fit within GDC jurisdiction
Right to appeal from GDC to Circuit Court
Absolute matter of right to appeal a final judgment if the “amount involved” is more than $20. This means a party who is aggrieved by more than $20 by the judgment in GDC can appeal to the circuit court
Steps for appealing a final judgment from GDC to the circuit court
(1) the party files written notice of appeal with the clerk of GDC within 10 days of judgment
(2) the appealing party posts a bond and pays a writ tax in GDC within 30 days of judgment
GDC to Circuit: What kind of case must the appealing party post a bond and pay a writ tax within 10 days of judgment?
Unlawful detainer cases
What are the four Category A venues?
- Certain Land Actions (Local Actions)
- Wills
- Writs
- Injunctions
What are “Local Actions”
Cases for the
1. recovery, partition, or judicial sale of land
2. to establish boundaries to land
3. for unlawful entry or detainer
of land (including trespass)
4. to subject land to a debt
5. to quiet title to land or remove an encumbrance on land
Where is venue OK for local actions?
Where the land or any part thereof lies
Where is venue OK for wills?
Where the will was probated, or if not yet probated, where it could have been offered for probate
What is a writ?
- Mandamus (such as forcing an officer to perform a ministerial act)
- Prohibition (such as stopping lower court from exercising jurisdiction)
- Certiorari (such as review of zoning decisions)
Where is venue OK for writs?
At the place where the proceeding to which the writ relates is located
Where is venue OK for 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.
Where is venue OK for Category B cases?
- Where the defendant resides or has her principal place of employment; or
- Where the cause of action arose
- More possibilities
-Where D has registered office or appointed agent
-Where D regularly conducts substantial business activity
-In Personal Property, where personal property is located
-In a case against fiduciary appointed under court order, where fiduciary qualified
Venue: For a contract case, to determine where the cause of action arose, does that include where the contract was entered?
Yes
Venue: For a contract case, to determine where the cause of action arose, does that include where the contract was to be performed?
Yes
When must Objection to Venue be made in Circuit Court?
Must be filed 21 days after service. If court receives after 21 days, object
When must Objection to Venue be made in GDC?
By day of trial
What happens when there are multiple defendants and venue is only okay for one defendant?
If venue is OK for one defendant, it is OK for all
If P voluntarily dismisses claim against D1, and venue is now improper against D2, can D2 object to venue and how?
Yes, within 10 days of dismissal by showing D1 was joined improperly or simply to create venue.
If all Ds are nonresidents of Virginia, where may P lay venue?
Where P resides
What does court do if case is filed in improper venue?
Court will transfer to proper venue unless it finds good cause to keep the case.
When venue is improper, what is an example of good cause to refuse transfer?
Defendant failure to press the issue promptly
What must be shown to transfer FROM Proper venue and what four factors are considered??
Good cause.
1. Plaintiff’s choice
2. Forum selection clause
3. Convenience for parties/witnesses
4. Court’s discretion.
What is the standard for transferring under Forum Non Conveniens
Transfer ≠ forum non conveniens
When can Forum Non Conveniens apply in VA?
If the cause of action accrued out of state and is brought by a nonresident of Virginia, and there is a more convenient venue outside Virginia
Requirements for Forum non Conveniens
- Good cause
- Other court has jurisdiction
What must be included with service of process?
Summons + complaint
What is a summons?
Tells defendant that she’s been sued and what she needs to do to avoid default
Who can serve?
- An adult civilian who is not interested in the case
- By the sheriff or deputy
What are the three ways to serve individually?
- Personal service
- Substituted service
- Posted service and curing statute
What is personal service?
Delivering process directly to the defendant
When can substituted service be used?
When personal service is tried and unavailable
Requirements of substituted service?
- Personal service was tried and unavailable
- Service must be at Defendant’s usual abode
- Service to D or D’s family at least age 16 and not a guest
- Process server must tell that person the purpose of the documents
Requirements of posted service?
- Personal and substituted service not possible
- Post copy of process on D’s front door
- 10 days before default judgment, must mail process
- Certify to clerk of court
What is a curing statute?
Improper service of process will be deemed sufficient so long as the person to whom it was directed actually received it within the time prescribed by law.
What cases does curing statute never apply?
Divorce and annulment
Can plaintiff request by mail that D waive formal service?
Yes, same as federal courts
If D is in VA to be a witness in another civil case, is she immune from service for a Virginia civil case?
No, but she would be immune for a federal civil case
Is there immunity from service for one summoned to appear before the grand jury in a criminal case?
Yes, but even then, the court may deny immunity if it would thwart efficient administration of justice
What are two ways of service under long arm statutes?
Option One
1. P files affidavit
2. P gives process/affidavit to the Secretary of the Commonwealth
3. Secretary sends process to D
4. Secretary sends certificate to clerk
Option Two
1. Personal service on D outside state
2. Must have PJ outside state
MUST all Virginia incorporated corporations and qualified non-Virginia corporations designate a registered agent to receive service?
Yes
Who may plaintiff personally serve when suing a Virginia corporation?
- Registered agent
- Any officer
- a director
- If registered agent not found at registered office, then clerk of the State Corporate Commission
Who may plaintiff serve when suing a non-Virginia corporation or a Virginia corporation without a registered agent?
Any officer, director, or agent of the corporation found in VA.
How may plaintiff serve when suing a non-Virginia corporation when no one who can receive service is found?
2 copies of process and an affidavit of corporation’s last known address are served on the clerk of the State Corporation Commission
How is service done under the Nonresident Motorist act?
Commissioner of Motor Vehicles also may be served. Plaintiff gives an affidavit of due diligence and of D’s nonresidence; if affidavit is false, no jurisdiction.
When can service by publication be used?
- in cases concerning rights to property
- Plaintiff gives affidavit that he used due diligence to find D, but without success
How long does defendant have to respond to service by publication?
50 days to respond to complaint OR
if against nonresident, plaintiff can ask sheriff in D’s county to serve process on him. 21 days in this case.
What are the requirements for the affidavit supporting publication notice
States
1. Last known address of D
OR
2. the fact that address is known
What is The Return?
Proof of service. It is a report to the court by the officer who served process, relating what she did to make service.
What is the requirements of the return?
- Relates what officer did to make service.
- States reason for failing to serve D personally.
- Filed within 72 hours of serving process
How is a service different when served by an officer vs a civilian?
By officer: Return is prima facie true
By civilian: Must be sworn affidavit. Is evidence of service but not prima facie
When does the case commence for purposes of tolling the statute of limitations?
When filed, not when served
When must Plaintiff have process served to avoid having case dismissed?
Within 1 year of filing
When does untimely service NOT warrant dismissal?
Plaintiff must show due diligence in trying to make service
Before a court dismisses for untimely service, what must they do?
The court must give Plaintiff 30 days’ notice and hold a hearing
What are the rules for service of other documents?
For responsive pleadings, counterclaims, motions, discovery, etc, the party can just mail, fax, or make in-hand delivery of a copy of the paper to all counsel of record on or before the filing date. Then, counsel for serving party certifies the fact of delivery on the document filed with the court.
When can service be emailed?
- Party is not brought before court for the first time
- Consent of the party to be served
How is time to respond to service of other documents different when by mail?
Adds 3 days to time to respond
When is service of other documents effective and what is the exception?
At mailing or delivery, but a fax after 5pm is not effective until the next day
What is the required form of pleadings?
- State in numbered paragraphs, facts on which claim relies
- Clearly informs opposing party of the true nature of the claim or defense.
- At least 1 individual lawyer must sign
What is a motion craving oyer?
When document that should be annexed to a pleading is not, then other party makes a motion craving oyer. If granted, the other party must produce the document, which is treated as though annexed to the pleading.
Pleadings: Requirement of attorney certificate
Attorney must sign and certify
(1) She has read it
(2) to the best of her knowledge, information and belief (formed after reasonable inquiry) it is grounded in fact and law (or a good faith claim that law should be modified) and
(3) it is not for harassment or delay
What are possible sanctions for violating Certificate Requirement?
Can be liable for costs and attorney fees because of improper document. If attorney refuses to sign, document can be stricken.
When can you plead alternative facts to alternative parties?
If they arise from same transaction or occurrence.
Can court extend the time in which parties are required to file pleadings and motions? Are there exceptions?
Yes, in the sound exercise of its discretion, even if time for filing document has passed. A motion challenging venue CANNOT be extended
Can a court condition an extension of time on the party’s posting a bond?
No
Service in GDC
Less formal
1. Plaintiff obtains civil warrant from clerk on court and fills it out OR drafts a tailored motion for judgment (complaint)
- Warrant directed to sheriff or deputy, who serves it on the defendant OR if motion for judgment, officer can serve it along with a notice of motion for judgment.
Requirements of GDC warrant
- Warrant (or motion for judgment) tells D that he must appear in court on the return date to respond.
- Return date is not more than 60 days or fewer than 5 days after service
Are there responsive pleadings in GDC?
Generally, no. They show up on return date and try the case.
GDC: When will the defendant be made to file a responsive pleading?
When plaintiff moves for Grounds of Defense and court grants in their discretion
GDC: What is a bill of particular?
Motion by D for more details of P’s case
GDC: What happens when P fails to file particulars or D fails to file grounds of defense?
Summary judgment against party failing to file
GDC: What is a continuance?
If party does not want to go forward on return date, they may move for a continuance, the granting of which is in the court’s discretion.
GDC: When must motion of continuance be denied?
If party does not move before the return date and does not show continuance is in the best interest of justice
GDC: If a suit is brought on a written instrument, must original document be tendered?
Yes, unless excused by court by statute or for good cause
GDC: When can defendant object to venue?
Any time on or before day of trial
CC: Requirements for a complaint
Pleading must contain
1. Name of court
2. Names and addresses of the parties
3. Signature of lawyer
4. Statement of facts in numbered paragraphs
5. Clearly inform defendant of the true nature of the claim
CC complaint: Must plaintiff allege jurisdiction?
No
CC complaint: Must plaintiff allege venue?
No
Must plaintiff make a statement of relief desired?
Yes
What is a prayer
A statement of relief desired
CC: What is an ad damnum clause?
A statement of relief for damages
CC: What must be identified separately in the prayer for relief?
Punitive damages
CC: When may plaintiff join claims?
When they arise from the same transactions
CC: How long does D have after service to respond?
21 days
CC: Ways to respond to complaint
- Motion for Bills of Particulars
- Motion objecting to venue
- Move to dismiss for plaintiff not serving within 1 year of commencement
- Challenge PJ
- Motion to quash process
- Demurrer
- Special Plea or “Plea in Bar of Recovery”
- Answer
- Equitable defenses to legal actions
CC: What is a Motion for Bill of Particulars?
Asks the court to require the plaintiff to amply her pleading. Similar to federal motion for more definitive statements. Must be made promptly.
CC: What are requirements for a motion objecting to venue?
- States why venue is improper
- States what venue would be proper
- Must be timely: within 21 days unless court extends time.
CC: Can the court transfer venue when defendant files defective motion?
Yes, court has power to transfer
CC: What happens when D’s motion to dismiss for untimely process is granted?
Dismissed with prejudice
CC: When will court deny motion to dismiss for untimely process and what happens?
When plaintiff used due diligence. Motion is denied and D must respond within 21 days of denial.
CC: When does D waive a Personal Jurisdiction challenge?
When D engages the merits/makes a general appearance
CC: Is asking for an extension of time engaging with the merits?
No
CC: Is objecting to venue engaging with the merits?
No, unless raised AFTER making motion objecting to venue
CC: What is a motion to quash process?
A motion that argues service was improper, or a problem with issuance of process or with the return.
CC: When is Motion to Quash process waived?
D makes a general appearance.
CC: When does engaging the merits NOT waive motion to quash process
When made simultaneously or before response to merits
CC: What is a demurrer?
Tests sufficiency of a pleading that seeks affirmative relief.
CC: What is the main use of a demurrer?
Failure to state a cause of action
CC: Can a demurrer challenge misjoinder of claims?
Yes
CC: Can a demurrer challenge lack of SMJ?
Yes
CC: Can a demurrer challenge lack of PJ?
NO
CC: Can a demurrer say P’s pleading is insufficient as a matter of law?
No, pleading must say specifically why it is
insufficient
CC: Can a demurrer say P’s pleading fails to state facts showing that P is entitled to relief?
No, pleading must say specifically why it is
insufficient
CC: What can a demurrer NOT do?
Allege new facts
CC: What does a court do after granting demurrer?
A court will NEVER grant or deny a demurrer. They will sustain or overrule.
CC: How can D raise an arbitration clause that was not mentioned in the complaint?
A motion craving oyer
CC: What does the court do after sustaining demurrer?
Sustain without prejudice and set time for amendment
CC: What happens if D files demurrer before her answer or at the same time?
It’s allowed
CC: What happens if D files demurrer AFTER her answer?
Will need court permission
What is a “Plea in Bar of Recovery”
A special plea that raises affirmative defenses, such as statute of limitations or res judicata.
CC: How can a special plea be raised?
Separately, as a motion to dismiss, or stated like affirmative defense in the answer.
CC: What does D put in answer?
- Responses to allegations of the complain
- Affirmative defenses aka special pleas (D can also move to dismiss)
CC: What is a general denial and is it allowed?
A general denial is one sentence long and denies all allegations of complaint. Generally NOT allowed.
CC: How can D respond to allegations of the complaint?
Admit, deny, state lack of knowledge in numbered paragraphs
CC: After the court has overruled all demurrers, pleas and motions, when will D be ordered to file answer?
Within 21 days or such time as the court directs.
CC: What is common law recoupment?
Equitable defenses to legal actions such as failure of consideration, fraud in inducement, breach of warranty, or unconscionability.
CC: Can D raise equitable defenses in a damages action on a contract?
Yes
CC: Can D recover damages for equitable defenses in a damages action on a contract?
Yes, even in excess of plaintiff’s claim.
CC: In addition to damages in damage actions on a contract, can D get reformation or recission of a contract or compel conveyance of land?
NO
CC: What is a verified pleading?
A sworn pleading or affidavit under oath
CC: When MUST use a sworn pleading or affidavit?
When raising any of the following defenses:
1. Lack of genuineness of handwriting
2. Lack of corporate or partnership or agency status (including employment relationship)
3. Lack of ownership or operation of power or instrumentality
In an action on a contract seeking payment of money, what can the plaintiff file with his complaint (or motion for judgment or civil warrant in General District Court)
An affidavit stating:
(1) the amount of his claim;
(2) that the amount is justly due;
(3) the date from which he seeks interest
In an action on a contract seeking payment of money, how must D respond to affidavit with complaint?
Must plead under oath that P is not entitled to the money. If he fails, judgment is entered for plaintiff.
In an action on a contract seeking payment of money, what is the plaintiff entitled to if defendant pleads under oath P is not entitled to money?
P entitled to continuance if he moves for it.
CC: When must plaintiff file reply?
When D pleads new matter in defensive response and expressly requests that P responds to the new matter.
CC: When P must issue reply, how long does P have?
21 days
CC: Can plaintiff file demurrer if D’s answer is legally insufficient?
No
CC: What is a motion to strike the pleading
A motion P files when D’s answer is insufficient legally.
CC: When can parties amend as of right?
Never
CC: When are amendments allowed?
To further the ends of justice. Allowed liberally unless it would unduly delay proceedings, prejudice a party, or whether amendment would be futile. Upheld unless abuse of discretion.
CC: When is relation back of an amendment appropriate?
- if amended document concerns same transaction or occurrence as the original
- The party seeking amendment has been reasonably diligent
- Other party is not substantially prejudiced.
CC: Requirements for adding a new defendant
- New party had to have notice within the limitation periods of the action; and
- Knew or should have known that but for a mistake concerning identity, he would be have been named originally.
What is the Discovery process in GDC?
None generally.
GDC: How does party compel a witness’s attendance at trial?
Through subpoena and subpoena duces tecum, addressed to parties or nonparties.
GDC: When should party file a request for subpoena?
At least 15 days before trial, or good cause.
GDC: What is a Subpoena Duces Tecum?
Request for documents
CC: What disclosures are required?
None
CC: How long to respond to interrogatories?
21 days
CC: What is the maximum # of interrogatories that may be served without court’s permission?
30, including subparts
CC: What is the maximum number of depositions
No maximum
CC: How must attorney use subpoena duces tecum?
Request in writing from the clerk of the court with notice to all parties OR issue a subpoena or subpoena duces tecum as an officer of the court. Must file a copy of subpoena with the court and serve copies on all parties.
CC: What rule of evidence applies to discovery?
Relevancy
CC: What is a discovery protocol for ESI?
A party who anticipates that her responses to a discovery will require her to produce ESI.
CC: When must party propose a discovery protocol for ESI?
Within 21 days after being served with the request, or 28 if request accompanied complaint. If other party does not agree with protocol, parties must make good faith effort within 15 days to work it out.
CC: Can party seek discovery of other side’s insurance coverage, even though that could not be admitted at trial?
Yes
CC: When plaintiff seeks punitive damages, can he get info about D’s net worth and gross earnings?
Yes, it’s relevant to punish the defendant.
CC: Can party repsond to an interrogatory by referring requesting parties to documents in which answers can be found?
Yes, if done in sufficient detail.
CC: In producing documents, how must documents be presented?
As kept in usual course of business or organized and labeled to correspond with categories in the request.
CC: When wife of seriously injured victim wants to advance the case because witnesses are to become unavailable, what two things can she do?
- Become victim’s fiduciary and sue. Then subpoena and depose.
- File a verified petition in CC where victim resides seeking perpetuation of testimony. Court can then order testimony of eyewitnesses even though no case filed.
Can D refuse to respond to a request for admission on the basis it’s a question to the jury?
NO, court will take as admission.
When can a third-party beneficiary sue?
In his own right, even if not mentioned in contract
Can a plaintiff sue one tortfeasor, some of them, and/or all of them?
All of the above
Can P sue one joint tortfeasor after settling with another?
Yes, but judgment against others can be reduced by amount received in settlement
How can partnerships be sued?
-Individual partners can be named
-Partnership itself can be named
-Name partners AND partnership
When can executor or administrator sue or be sued in representative capacity?
When case relates to acts of decedent
When can executor sue or be sued personally?
Can be named individually or as representative
How can a minor plaintiff sue?
In his own name by whoever is next friend.
When will court disturb choice of next friend?
If there is a conflict of interest or impropriety
How will a judgment in favor of a minor be affected by a failure to sue through a next friend
Will not necessarily be disturbed
What is an ad litem?
A guardian for purposes of the litigation
How can a minor defendant be sued?
In his own name, but minor can ask court to appoint an ad litem.
Can P get default judgment against a properly served minor defendant?
No, if no ad litem or attorney representative
What is a fiduciary?
Someone appointed to represent legally incompetent person
How can convicts be sued?
Not individually. Must appoint a committee to represent.
Do causes of actions survive the death of any plaintiff?
Yes
Do causes of action survive the death of any defendant?
Yes, but would moot a claim for divorce.
How does case proceed when plaintiff dies?
Plaintiff’s executor will make a motion to substitute himself as P
How does case proceed when a party has a change in civil status, such as mental incompetency, disability, or conviction?
Case survives, but must be revived in representative’s name.
How long to file a counterclaim in Circuit Court?
21 days of service
How long to file a counterclaim in GDC?
Until trial
Does a counterclaim need SMJ?
Yes
When is a counterclaim compulsory?
Never
How can D file an unrelated counterclaim?
Same way as any other counterclaim.
Can counterclaim be jointly asserted against all plaintiffs?
Yes
When does a counterclaim require a summons?
Never
How long does P have to respond to counterclaim?
21 days
Can a counterclaim exceed 25k in GDC?
No unless it’s a personal injury case.
When is a crossclaim compulsory?
Never
Must a counterclaim be transactionally related to P’s claim?
No
Must a crossclaim be transactionally related to P’s claim?
Yes
Can counterclaim be jointly asserted against all co-parties?
No
Does a crossclaim require a summons?
No clear case law, but appear all you need to do is mail it or send it as a subsequent document.
How long does a crossclaimant have to file in Circuit Court?
Within 21 days of service of process on him
How long does a crossclaimaint have to file in GDC?
Until trial
How long does cross-defendant have to respond to cross-claim?
21 days
What is Impleader?
Defending party wants to join a third party whom he will seek indemnity or contribution on the underlying claim against D
What is D’s interpleading called?
A third party complaint
When does D file a third party complaint in Circuit Court?
Has a right to file not later than 21 days after he serves first responsive pleading. After that, he needs leave of court
When does D file a third party complaint in GDC?
Within 10 days after service or up until trial date, whichever is earlier
Does third party complaint require a summons?
Yes. Must serve process with third party complaint and summons.
Must a third party complaint arise from the same transaction or occurrence?
Yes
When can tortfeasor seek contribution from joint tortfeasor?
When it involves no moral turpitude.
Can you implead a joint tortfeasor even when the plaintiff could not recover against them?
No
Can a third party employer of P be impleaded for contribution?
No, plaintiff could not recover from employer due to Workman’s Compensation.
What is a necessary party?
A non-party who should and can be made party to the case
When can court order joinder of necessary parties?
When the ends of justice requires.
What is an indispensable party?
A non-party who should be joined but court has no PJ. If court dismisses case, absentee party is dispensable.
What may a court do if absentee cannot be joined?
May decide to dismiss rather than proceed without the absentee.
What is interpleader?
When a holder of real/personal property forces anyone with a claim to litigate in a single proceeding.
What is a stakeholder?
A person in possession of property who initiates interpleader.
When can GDC order interpleader?
Property worth 25k or less or in any amount for earnest money deposit in a land sale contract.
Can Circuit Court enjoin interpleaded parties from litigating in other proceedings?
Yes
What is intervention?
When 3rd party wishes to join case
When is there a right to intervene?
Never. Absentee must make motion and decision is within discretion of the court.
What is the time limit to intervene?
None, but watch for delay and prejudice
What relationship is required for intervention?
Must be related to the case.
What must absentee do to intervene as a plaintiff?
File motion and serve process
What must absentee do to intervene as a defendant?
File motion and answer
How does class action work in VA state courts?
There is none
Who brings a wrongful death suit?
Decedent’s personal representative
In a wrongful death case, who are beneficiaries and in what order?
- Surviving spouse, children, and grandchildren
- If no children or grandchildren, then surviving spouse and parents of decedent.
- If no surviving spouse, or children/grandchildren, parents and siblings.
-IF none, intestate takers.
Who determines damages in a wrongful death case
Jury
What are categories of damages in a wrongful death case
- Sorrow, anguish, lost companionship
- Services and income
- Medical/funeral expenses
What court(s) is a declaratory judgment sought in
Circuit court only
What is a declaratory judgment?
When a litigant wants declaration of rights in a situation where there’s
actual controversy (so it’s not just an advisory opinion). In that or a later proceeding, the litigant can seek consequential relief, like damages or an injunction.
What situation is a declaration of rights proper in?
In an actual controversy
What court is a partition of realty case brought?
Circuit court only
What two ways does a partition of realty come up?
- Co-owner wants to be free of the other owner.
- Creditor of one of two co-owners, who has a lien on co-owner’s interest in land, wants to have that portion of the land sold to satisfy his debt.
What are the three methods of partition of realty?
- in kind
- by allotment
- by sale
What is partition in kind?
Court divides up property
What is partition by allotment?
Co-owner gets all land but pays off.
When is partition by allotment used?
When partition in kind cannot be practically made.
What is partition by sale?
Sell all the land and give co-owners money
When is partition by sale used?
- Other two options not practicable
- Partition by sale in the interests of the parties
What category of case is partition by sale?
Category A
What court is actions to establish boundaries?
Circuit court
What category of case are actions to establish boundaries?
Category A
What court litigates ejectment?
Circuit court only
What category of case is ejectment?
Category A
What category of case is unlawful detainer?
Category A
What courts can hear unlawful detainer cases?
Circuit court or GDC
GDC: What is the amount in controversy for unlawful detainer?
None
What is detinue?
Action to recover personal property or its value in damages
What courts can hear detinue actions?
Circuit court and GDC
GDC: What is the amount in controversy for detinue?
≤ 25k
Circuit court: What is the amount in controversy for detinue?
> 25k
How can plaintiff get immediate possession in a detinue action?
A verified petition
In a detinue action, what elements must Plaintiff satisfy to get immediate possession?
- The verified petition must describe the property and show the plaintiff’s right to it
- The petition must show the risk that the property will be damaged or hidden or removed
- The plaintiff must post a bond of twice the value of the property
- The sheriff cannot enter defendant’s house forcibly to seize theproperty
How long does a party have to request review by a medical malpractice panel?
Within 30 days after a responsive pleading is filed
Who establishes the medical malpractice review panel?
The Virginia Supreme Court
How does a medical malpractice panel affect the tort case?
-Stays the court case
-After panel decision, parties can accept OR resume tort case
If a contract is silent on the issue of arbitratoin, what happens?
Court determines whether dispute is subject to arbitration, and if it is, court orders parties to arbitrate.
How to establish Statute of Limitations in an equity action?
When an equity cause of action is asserted, there may be an argument for application of “laches,” which will bar a plaintiff
who has delayed unreasonably in suing. But usually, equity
follows the law,” and the statute of limitations applies.
What is laches?
If an equity cause of action is asserted, laches will bar plaintiff who has unreasonably delayed suing, to prejudice of prospective defendant.
What is the general rule of when the statute of limitation starts to run?
Runs from the date of breach
What four cases does the statute of limitation not run from the date of breach?
- Fraud, mistake, undue influence
- Malicious prosecution
- Contribution claims
- Malpractice with continuous treatment
When does the statute of limitation run for fraud, mistake, or undue influence actions?
When plaintiff discovered the harm or when a reasonable person would have discovered
When does the statute of limitations run for malicious prosecution?
When the underlying case ends
When does the statute of limitations run for a contribution claim?
When one pays more than her fair share
When does the statute of limitations run for medical malpractice with continued treatment?
At end of related treatment.
What is the statute of limitations for personal injury cases?
2 years
What is the statute of limitations for nonphysical personal torts (like malicious prosecution)
2 years
What is the statute of limitation for defamation cases?
1 year
What is the statute of limitations for property damage actions?
5 years
What is the statute of limitation for a nuisance action when there is an intermittent nuisance?
5 years from the cause of action. Argue cause of action date based on facts.
What is the statute of limitation for property damage for sales covered by UCC?
4 years
What is the statute of limitation for fraud?
2 years
What is the statute of limitation for written contracts?
5 years
What is the statute of limitation for unwritten contracts?
3 years
What is the statute of limitation for unlawful detainer?
3 years
What is Virginia’s borrowing statute?
When the law of another state or country applies to the contract, Virginia has a “borrowing statute” that requires the application of the shortest limitation period. So if State A has a statute of limitation on written contracts for 3 years, it will apply, but if State A has a statute of limitation of 10 years, Virginia’s would apply.
How does a defendant raise the statute of limitations defense?
By written plea
Can defendant raise statute of limitations by demurrer?
No, demurrer cannot allege new facts
Must defendant plead the specific statute of limitations?
No, just must allege cause of action is barred
Who has burden of proof concerning statute of limitations?
Defendant
When does the statute of limitation run on a minor plaintiff’s cause of action?
When minor turns 18 or is judicially emancipated
When does being a minor not toll the statute of limitations?
- a medical malpractice case and child is 8 or older
When a child is under 8 years old, when can the plaintiff minor sue in a medical malpractice case?
Within six months or when the child turns ten, whichever is longer.
What stops the statute of limitations from expiring?
Filing the case (not serving process) before the statute runs
In a case against an unknown owner or operator of a motor vehicle, how long will the statute of limitation be tolled for?
3 years
What other type of claims does plaintiff filing toll the statute of limitations for
Counterclaims and crossclaims that arise from the same transaction or occurrence as the plaintiff’s claim?
When can defendant implead past the statute’s expiration and what is the effect?
When plaintiff files case within 30 days of expiration. Defendant can then implead up to 60 days past statute’s expiration.
What are the three procedural devices to terminate a case without a trial?
- Nonsuit
- Summary judgment
- Default judgment
What is a nonsuit?
Plaintiff voluntarily drops the case
When is a nonsuit without prejudice?
The first time the case is filed, unless:
- Jury is deliberating case
- It is a non-jury case and was submitted to the court
- Motion to strike evidence granted
- Special plea or demurrer awaiting decision
Where does Plaintiff refile after a non-suit?
In the same court unless no jurisdiction, good cause is shown, or in federal court
When must Plaintiff refile after non-suit?
Within six months or by the statute of limitations, whichever is longer.
What is the distinction between a default and a default judgment?
Default: Notation on docket sheet
Default judgment: What Plaintiff needs to enforce/recover relief
When is a party automatically in default?
If they fail to respond to affirmative pleading within court
How does Plaintiff get a default judgment if damages are not liquidated?
- moving for entry and
- moving for hearing on damages
If Defendant is in default, do they waive notice to further proceedings?
Yes, but notice will be given to counsel of record if there is one.
If Defendant is in default, do they waive a jury trial at further proceedings?
Yes
What issue can a defaulting defendant NOT litigate?
Liability, but can litigate damages
What is the standard for summary judgment?
No genuine dispute of material fact and entitled to judgment as a matter of law
How is Summary Judgment different in VA than in federal courts?
- Parties must agree to base the motion on depositions in VA
- Parties cannot base motion on affidavits in VA
- In VA, if the pleadings show a dispute of material fact, summary judgment is denied.
When must party file jury demand?
No later than 10 days after service of last pleading that raises a jury triable issue
What determines the size of the jury?
- If AIC > 25k = 7 jurors
- If AIC ≤ 25k = 5 jurors
- Parties can consent to 3 jurors
How many peremptory challenges for cause in the voir dire process?
3 each side
When must party object to jury instructions by?
When jury is charged
Can judge allow the jury to view premises?
Yes, if necessary to a just adjudication
Can judge allow pleadings into the jury room?
No
Can judge allow exhibits into the jury room?
Yes, in court’s discretion
Can judge give opinion of credibility of witnesses?
No
Can a judge sequester witnesses?
Yes, judge can grant motion to sequester witnesses
Can a judge sequester parties?
No
Can judge allow a sequestered witness to testify if they sneak into the courtroom and listens to evidence?
Yes, judge’s discretion
Can juries ever be used in equitable causes of actions?
Yes
What is the biggest question for deciding whether juries can be used in equitable causes of action?
Whether the jury’s decision is binding on the court or merely advisory
In equity cases, does a party have a right to demand a jury to decide facts regarding a special plea?
Yes
In equity cases, can the court refer an issue out of chancery?
Yes, the court can on its own motion after a finding of conflicting evidence. Must be advisory
In an equity case, if the case is rendered doubtful by conflicting evidence, how can a party respond?
Filing an affidavit that case is rendered doubtful by the conflicting evidence of another party, in which court may refer issues out of chancery. Advisory.
What is the purpose of an advisory jury?
To aid the conscience of the judge.
Is judge free to ignore findings of an advisory jury?
Yes, unless it is an abuse of discretion to disregard findings supported by substantial evidence.
GDC: When will a medical report be admitted?
Written notice of intent to use the report given to other parties at least 10 days before trial. Must be accompanied by a sworn statement by the provider
that: (1) she treated the party; (2) the information in the report is true, accurate, and fully describes the injury; and (3) any statement of costs contained in the report is true and accurate.
GDC: When will hospital records be admitted?
Accompanied by a sworn statement of the person who had custody of the records that the copies are true and accurate.
When is an itemized estimate or appraisal of a vehicle repair admissible?
In excess of 2,500:
2. In the estimate, the repair person must state under oath: (a) that he is a motor vehicle repair person qualified to determine the amount of damages; (b) the length of time that he has done such work; and (c) the name and address of his employer.
3. A copy of the estimate is mailed or delivered to adverse party at least seven days before trial.
Under 2,500: Estimate can be used in same way, but need not be mailed or delivered to adverse party in advance of trial.
What is ore tenus?
Oral presentation of testimony
CC: What are commissioners in equity?
Assists judge in deciding case. Meant to assist but not bind judge.
CC: When can commissioners in chancery be used?
If parties and the court agree or the court finds good cause on facts of the case
CC: What can the commissioner do?
Subpoena witnesses, take testimony, make a record of evidence she finds inadmissible. Files report with clerk of circuit court and notifies counsel of record.
CC: How long do parties have to file objections to commissioner report?
10 days
CC: When is commissioner’s report entitled to no deference?
Matters of law
For equity cases, abuse of discretion
What is a motion to strike the evidence?
A motion for judgment as a matter of law
In VA, what happens when judge grants motion to strike evidence?
After granting motion to strike evidence, judge will enter summary judgment
What happens in the case of a hung jury?
Mistrial
What is the maximum recovery a Plaintiff can get?
What the complaint alleges in damages
What is a quotient verdict and when can it be used?
When jurors did not agree on damages as a group, they each determine individually, add it up, and divide by number of jury members. ALWAYS improper.
How do you get a rehearing in GDC?
- Motion within 30 days of judgment
- Court must rule within 45 days of judgment
How do you get a rehearing in Circuit Court?
Court has full discretion within 21 days after final judgment. After 21 days, or the next business day if the 21st day is a weekend or holiday.
After the breast of the court expires, when can they still vacate?
- Default judgment or decree (equitable)
- On the ground of fraud
- Within 2 years of entry
What is a Motion to Set Aside Verdict as Contrary to Evidence?
Equivalent to renewed judgment as a matter of law, except moving party is not required to have moved to strike the evidence first
When do you move for a new trial?
After 21 days, unless court suspends, vacates, or modifies judgment.
What are five examples of grounds for a new trial?
- Prejudicial error or misconduct by court (like an erroneous jury instruction)
- Misconduct of party or attorney (like referring to insurance coverage of party)
- New evidence discovered
- Unfair surprise by evidence presented at trial that had material outcome on case
- Excessive or inadequate damages
What is the standard to request new trial for newly discovered evidence?
Must allege that failure to produce evidence not on their negligence
What is remittitur?
Excessive damages lowered or new trial
What is additur?
Liability established, but verdict is so low that defendant must pay a higher amount or submit to new trial
What is the test for a new trial because the verdict was too high or too low?
Does damages figure shock the conscious?
What can judge do if verdict is too high?
- Order a new trial
- Order a new trial on damages only if liability well established
- Suggest remittitur: that P can accept reduced reward or go through a new trial.
What are PLA’s options after judge suggests remittitur
- Accept remittitur without protest
- Accept remittitur under protest and try to appeal order to remit OR
- Reject and go through new trial, and if still aggrieved, appeal on ground that new trial was error. Must make exception to the order of new trial
What is a bill of review?
On equity causes of action, party can seek review for up to six months. Party can file, without leave of court, to correct errors apparent on face of record. With leave of court, a party can file based on new evidence.
Is a non-suit a final judgment?
No
What is required for certification of interlocutory ruling?
Party must request and court must certify
1. Substantial ground for difference of opinion
2. No clear precedence
3. Determination will be dispositive of material aspect, and
4. Court and parties agree it’s in best interest.
After court certifies for interlocutory appeal, what must party do next?
Petition to court of appeals within 15 days, court of appeals have discretion whether to do so.
In a partial final judgment, how can loser of the ruling appeal?
Prove the following is true:
(1) the trial court enters “partial final judgment” on the claim,
(2) the interests involved are separate and distinct from those remaining,
(3) results of appeal on the partial final judgment will not affect decision in the remaining causes of action, and
(4) results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgment.
Under what circumstances can party appeal from GDC to CC?
Final judgment more than $20.
What must party do to appeal from GDC to CC?
- File notice of appeal in GDC no later than 10 days of entry judgment. Seeking a rehearing does not alter this timetable.
- Party must post bond and pay writ tax and costs in GDC no later than 30 days of entry of judgment (10 days in unlawful detainer cases)
Under what circumstances can party appeal from CC to VA Court of Appeals?
Civil cases involving $500 or more
How to appeal of right from CC to VA Court of Appeals?
- NOTICE OF APPEAL:
a. Appellant must file a notice of appeal with the clerk of the circuit court no later than 30 days after entries of judgment.
b. Copies must be sent to all opposing counsel.
c. Appellant files a copy of the notice of appeal with the court of appeals. Filing fee must be paid within 10 days after that notice. - RECORD OF APPEAL: The clerk of the trial court prepares the record on appeal and sends it to the court of appeals. In turn, the court of appeals sends a notice of filing of the record to all parties.
- Appellant must file opening brief within 40 days of filing record on appeal.
- Appellee’s reply brief within 30 days after opening brief.
- Appellant can file a reply 14 days after.
What is a Record on Appeal and what does it contain?
- Consists of the documents and exhibits, instructions given and refused, the trial court orders, etc. A transcript of the proceedings also may be included if it is filed with the circuit court within 60 days. Parties may object to the transcript.
- The clerk of the trial court prepares the record on appeal and sends it to the court of appeals. In turn, the court of appeals sends a notice of filing of the record to all parties.
What are requirements for the Notice of Appeal?
- Notice of appeal must state whether a transcript of the trial or statement of facts, testimony, and other incidents of the case will be filed.
- Filed with clerk of the circuit court no later than 30 days after entries of judgment
- Copies must be sent to all opposing counsel
- Appellant files a copy of the notice of appeal with the court of appeals. A filing fee is required at that time. If not paid then, the clerk will file the notice, but the fee must be paid within 10 days after that notice. If fee not paid by that time, appeal is dismissed.
CC to Court of Appeals: When are oral arguments permitted?
When the appeal is of right, unless court unanimously agrees that oral argument is unnecessary, either because appeal is without merit or because clear precedent exists
What is an opening brief and what must it contain
Filed by appellant. The opening brief must contain:
(1) a statement of the nature of the case and proceedings at the circuit court and
(2) assignments of error with references to the record where the error was preserved. The appellee’s brief can make additional assignments of error
When is a petition for appeal used?
When appeal is discretionary. Time periods for filing vary depending on the type of case.
When a person is aggrieved by final decision of the court of appeals, how do they petition the Supreme Court?
A person aggrieved by a final decision of the court of appeals may petition the Virginia Supreme Court for review. Most appeals will be by petition, which the supreme court can grant or deny in its discretion. There are some appeals that go from the circuit court directly to the supreme court, such as judgments of the State Corporation Commission. The supreme court has jurisdiction to issue writs of mandamus and prohibition.
Elements of res judicata?
- Same parties
- Case 1 ended in valid final judgment on the merits.
- Cases involve same cause of action
What is considered the same cause of action in Virginia?
Like in federal courts, usually is same transaction/occurrence.
Exception: personal injury and property damage are NOT the same cause of action.
What are the elements for Collateral Estoppel?
- Case 1 ended in a valid final judgment on the merits. (Same as federal law).
- An issue presented in Case 2 was actually litigated and determined in Case 1. (Same as federal law).
c. That issue was essential to the judgment in Case 1. (Same as federal law).
d. Issue preclusion may be asserted only against one who was a party to Case 1 (or represented by that party). Same as federal law.
e. It is always OK for someone who was a party to Case 1 to use issue preclusion in Case 2 (if the other requirements are met). Under federal law, we saw that sometimes “nonmutual” issue preclusion was OK. That meant that federal law would allow a nonparty to Case 1 to assert preclusion in Case 2. The Virginia Supreme Court never allows nonmutual collateral estoppel.
