Virginia Civil Procedure

Question 1

When does the general district court have original jurisdiction over personal property?

Answer 1

In an act for partition where the value of the personal property is between $20 and $25,000

Question 2

Which court has exclusive jurisdiction over partitioning real property

Answer 2

the circuit court

Question 3

When must a motion for a new trial be filed in GDC

Answer 3

30 days after entry of the judgment

Question 4

When is venue tested

Answer 4

At the commencement of an action

Question 5

Where is venue proper in a marriage related action

Answer 5

Venue is proper in the place where the couple last cohabitated, or where the defendant resides.

Question 6

Where is venue proper for a case regarding a will

Answer 6

Venue is proper where the will was probated

Question 7

Where is venue proper for injunctive action

Answer 7

Venue is proper in the place where the targeted conduct is

Question 8

Where is venue proper for disbarment of an attorney

Answer 8

Venue is proper where the attorney resides, has his practice, resided/had office, had a pending case for misconduct

Question 9

When must a defendant file a motion objecting to venue

Answer 9

Within 21 days of service of process in circuit court, before trial commences in GDC

Question 10

How long does a defendant have to reply to service of process in circuit court

Answer 10

21 days

Question 11

What constitutes service of process

Answer 11

Summons and an initial pleading

Question 12

Who may serve process

Answer 12

Sheriff of the county or a contiguous county; disinterested party over the age of 18

Question 13

What constitutes service

Answer 13

Delivery directly on the defendant’s person, delivery to a household family member that is at least 16 years of age; posting a copy of the process at the front door along with mailing a copy to the party at least 10 days before a default judgment (nail and mail service)

Question 14

How long does a defendant have to respond if they waive process

Answer 14

60 days after the date the plaintiff requested waiver or 90 days if the defendant’s address is outside of Virginia

Question 15

What is an aggressive pleading

Answer 15

An aggressive pleading is a pleading that states a claim for relief, such as a complaint or counterclaim.

Question 16

When must a counterclaim be filed

Answer 16

Within 21 days after service of process in CC, before trial in GDC

Question 17

What is an affirmative defense

Answer 17

An affirmative defense is an assertion by the defendant that, even assuming the plaintiff’s allegations are true, the plaintiff is not entitled to the relief sought. The defendant bears the burden of proving an affirmative defense. Affirmative defenses include: SoL, SoF, fraud, mistake, impossibility, infancy.

Question 18

What is a plea in bar

Answer 18

A plea in bar allows a defendant to file a special plea containing their affirmative defenses, rather than listing the defenses int heir answer. A plea in bar typically asserts a single factual issue that if resolves in favor of the defendant constitutes a complete defense to one or more of the plaintiff’s claims.

Question 19

What is a demurrer

Answer 19

A demurrer is a challenge to the sufficiency of the form, style, allegations, or appropriateness of an aggressive pleading. A demurrer contends that an aggressive pleading does not state a cause of action or fails to state facts upon which relief can be granted.

Question 20

Can a demurrer be filed after an answer

Answer 20

No, unless the court permits withdrawal of the answer.

Question 21

What motion can a plaintiff file against a responsive pleading

Answer 21

A motion to strike a pleading, which can challenge the sufficiency of an answer, demurrer, or plea at bar.

Question 22

What is a motion craving oyer

Answer 22

A motion craving oyer seeks a court order compelling the plaintiff to produce a document mentioned in, but not attached to, the complaint that is essential to the complaint.

Question 23

What must a pleading include

Answer 23

A pleading must clearly inform the opposing party of the nature of the claim or defense by briefly and simply stating in numbered paragraph the facts on which the party relies

Question 24

Can a party join a contract claim with a tort claim

Answer 24

Yes, provided they arise out of the same transaction or occurrence

Question 25

What does a lawyer certify when signing a pleading

Answer 25

They have read the document, it is well grounded in fact and justified by existing law or good faith argument for the extension/modification/reversal of existing law, there is no improper purpose

Question 26

What two objections can a party raise to a pleading

Answer 26

The pleading was not sworn to or was not accompanied by an affidavit

Question 27

When must a party object to a pleading

Answer 27

Within 7 days after the pleading is filed

Question 28

How can service be made on counsels of record

Answer 28

Personal delivery, commercial delivery, fax, email, mail

Question 29

How can a party amend a pleading

Answer 29

A party must obtain leave of court to amend a pleading. The court should liberally grant leave to amend

Question 30

Who is a necessary party

Answer 30

(1) complete relief cannot be granted among the parties in that person’s absence; (2) ther person has an interest relating to the subject of the action in such a way that the absence may (a) impair or impede their ability to protect that interest (b) leave any of the current parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations

Question 31

When must a motion to join a party be filed

Answer 31

21 days after service of the complaint

Question 32

Who is an indispensable property

Answer 32

A court sondiers whether the judgment (1) might be prejudicial to the absent person (2) extent to which prejudice can be lessened or avoided by protective provisions in the judgment (3) whether a judgment in the person’s absence will be adequate; (4) whether the plaintiff will have an adequate remedy if the action is dismissed

Question 33

What are the statutes of limitations for contract actions

Answer 33

Oral contract - 3 years; UCC contract - 4 years; non-UCC written contract - 5 years

Question 34

What is the SoL for defamation

Answer 34

1 year

Question 35

When may a plaintiff seek nonsuit

Answer 35

A plaintiff may seek a nonsuit any time prior to the granting of a motion to dismiss or when the jury retires to deliberate in a jury trial or when the court takes the case under advisement in a bench trial

Question 36

When can a plaintiff refile following a nonsuit

Answer 36

6 months from the court’s granting of the nonsuit or before the end of the SoL, whichever is longer

Question 37

Can a criminal defendant waive their right to a jury trial

Answer 37

A criminal defendant does not have a right to a bench trial and can only be tried bu a judge if the Commonwealth agrees to it

Question 38

How should a suit on behalf of a minor be brought

Answer 38

Because infants cannot sue on their own behalf, a next friend sues on their behalf.

Question 39

What is a misnomer

Answer 39

A misnomer occurs when the correct person or entity is named as a party in a pleading bu under an incorrect name, such as a misspelling.

Question 40

How can a misnomer be fixed

Answer 40

By the court or any motion of any party

Question 41

What is a misjoinder

Answer 41

A misjoinder occurs when an incorrect person or entity is named as a party in a pleading.

Question 42

How can you serve a city or town

Answer 42

Serve its attorney or mayor, manager, or trustee

Question 43

How can you serve a county

Answer 43

Attorney, or on the attorney for the commonwealth

Question 44

How does service occur under the nonresident motorist or pilot act

Answer 44

A nonresident who operate a motor vehicle or aircraft in VA is deemed to designated the Commissioner of the DMV or Secretary of the Commonwealth as his agent for receipt of process

Question 45

When is service by publication appropriate

Answer 45

(1) noresident or a foreign corporation (2) cannot be found despite a diligent effort (3) last known residence of the party to be served was in the county in which service is sought and the sheriff has been unsuccessfully attempting service for 21 days

Question 46

What should be filed to seek dismissal from a suit

Answer 46

A demurrer

Question 47

What can a party obtain if the court transfers a case for venue

Answer 47

The court may award an amount necessary to compensate a party for the inconvenience, expense, and delay caused by the commencement of the suit in the wrong forum or by the bringing of a frivolous motion to transfer

Question 48

What is the VA curative statute

Answer 48

Except in an action for divorce or annulment, process that has reached the person to whom it is directed within the time prescribed by law, if any, is sufficient, even though process was not served or accepted as required. The documents that reach the person must constitute process.