Virginia Civil Procedure Flashcards
Themis Lecture Notes
GDC: Non-Personal Injury Actions
Under $25,001 for non-personal injury
GDC: Personal Injury
Under $50,000 for personal injury
GDC Unlawful Detainer Land-lord Tenant
Jurisdiction regardless of $
Does GDC or CC have SMJ over Freedom of Information Act Actions?
GDC.
CC & GDC Concurrent Jurisdiction for both non-personal AND personal injury claims…
If claim is between $4,500 and $25,000 for non-personal injury
If claim is between $4,500 and $50,000 for personal injury
Circuit Court has jdx over claims valued at…
$4,500 and up
VA PJ Law: Related to Federal PJ
To full extent permitted by DPC
PJ: VA STATE LAW
Long Arm Statute deals with…
D’s who do not reside in VA.
Contacts sufficent to give the court jdx over Contract, Tort, Property, and family actions.
PJ: VA STATE LAW
Contract Based
If Defendant…
(1) conducts business/sells goods/services in VA as long as claim arose from those contacts
(2) sells product outside of VA covered by an explicit or implied warranty and product causes injury in VA, D will be subject to PJ if:
(i) D could reasonably expect that product to be used in VA, and
(ii) D conducts regular business in VA or derives substantial revenue from VA.
PJ: VA STATE LAW
TORT Based
If D acts in VA, causing tortious injury in the state, VA will have PJ over that particular claim.
PJ: VA STATE LAW
Property Based
If a D has an interest (ownership/possession) in real property in VA, VA will have PJ provided that the claim arises from that interest
PJ: VA STATE LAW
Family Based
Divorce Action: Matrimonial Domicile = VA can adjudicate
Support Action: If D is obligated to pay support to a VA resident, VA has PJ to enforce the obligation
Venue in VA - Mandatory/Category A
1. Choice of Forum clause
2. Real property
3. Action against the state
4. Wills
5. Injunctive relief
- MUST sue where the forum clause dictates
- MUST sue where land is located
- MUST sue in the district where the plaintiff resides
- MUST sue where the will was or would have been probated
- MUST sue in the district where the defendant will be forced to perform
Permissible or Category B Venue
IF a preferred venue does NOT exist, P may sue in any of the following venues…
- Where HUMAN D resides/works
- Where BUSINESS D has principal place of business, OR where a business D conducts substantial business - as long as its related to P’s claim.
- Where BUSINESS D’s registered agent is located
- Where a corporate D’s CEO resides
- Where the claim arose:
(i) K = last act that formed the K occurred OR where the breach occurred
(ii) Tort = where wrongful acts or harm occurred
P can lay venue: “where the bad guy lives or works, or where the bad thing happened.”
Venue: Multiple Defendants
A distract that is lawful for any one D is lawful for all D’s
Transfer of Venue - Definition
the movement of a case from one venue to another within the same judicial system
*State courts cannot transfer venue to federal court or to another state’s court system
Transfer of Venue in VA state court
Mandatory vs Permissible
-Mandatory = no transfer is permitted
-Permissible = permitted if an alternate venue is substantially more convenient. Can transfer to “any fair and convenient forum” in the Commonwealth, regardless of whether that venue is designated as permissible.
VA Venue - Impermissible
Court can retain the suit if the D fails to object or the parties agree to stay there.
If the defendant objects to venue, the court will transfer the case to an appropriate venue.
Forum Non Conveniens (FNC) is a ____, not a transfer, of a case because is cannot be _____ brought anywhere in the VA court system.
dismissal; conveniently
A VA State court will dismiss an action under FNC if….
- An alternative forum outside the Commonwealth is much more convenient
- Plaintiff is a non-resident
- The claim arose outside the commonwealth
- The alternative forum will have personal jurisdiction over all defendants.
Complaint - GDC
Informal; can file a regular complaint but often are simply forms to fill out (often called a warrant in debt or summons for unlawful detainer).
Complaints: Circuit Courts
1. Must contain the ____ the plaintiff’s claim for relief.
2. Must include a _____ for relief.
(i) “Ad Damnum Clause” is ___ .
(ii) Plaintiff cannot recover _____ than is stated in the Ad Damnum Clause.
3. May plead _____ or theories of liability
- facts that establish
- Demand
(i) how much the plaintiff is demanding
(ii) More - Alternative facts
Complaints: CC - Continued.
1. If there are documents that are essential to the case, the P must _____.
2. If not done, the D can file a motion ____.
- Attach them to the complaint.
- Craving oyer
Complaints: CC - Continued
Every complaint MUST be signed, which signifies…
That the signor has read the complaint, believes it is supported by sufficient facts and law, and is not offered for an improper purpose like harassment or delay
**If the complaint is not signed, it may be stricken*
Joinder: In General
- Minor that is a P > “next friend”; minor that is a D can be named (court must ensure they are represented)
- Incapacity > “ fiduciary” (named in suit) if none is appointed then “next friend”
- Imprisonment > “committee”
- Deceased person > pending suit, heir/personal representative takes over and is substituted as the new party.
Joinder of Plaintiffs: Multiple Plaintiffs
-Multiple Ps cannot joint together unless they have a join legal right (like spouses in a lawsuit dealing with a house that they own jointly)
-Plaintiffs who are jointly injured in the same accident cannot join together, must sue the D separately
Note that a single P can sue two D’s together – like an employer/employee
Joinder of Multiple Defendants
A P may sue multiple D’s; the claims against the D must arise from the SAME T/O
Necessary Party Joinder
When a person or entity has a significant interest in the litigation but is not a party
Necessary Party Joinder - Determining whether to join a person or entity….
- Is the absent party necessary?
- If the absent party is necessary, can the party be joined?
Usually due to lack of PJ - If the absent party cannot be joined, should the court continue or dismiss the suit?
Necessary Party Joinder - Is the absent party necessary?
1. Does the party have an interest that might be ____ if left out of the litigation?
2. Complete _____ cannot be issued in the party’s absence.
3. The current parties would be subject to _______ or _____ liability.
- Impaired
- Relief
- Duplicative or inconsistent
Necessary Party Joinder - If the necessary party cannot be joined…
Court will decide whether to continue the suit in the party’s absence by considering…
1. The extent of the ____ to the missing party
2. Whether there are ways to lessen the ____.
3. Whether there is another ____ in which the P can join all parties.
- Prejudice
- Prejudice
- Forum
These decisions are highly discretionary
Interpleader is…
when one party is stuck between two other competing parties.
Misjoinder vs. Nonjoinder
- Misjoinder is when a party has been inappropriately joined to a lawsuit.
- Nonjoinder is when a necessary should have been joined, but was not.
Joinder of Claims: Multiple Claims by a claimant
A particular claimant may bring any other claim they want, regardless or whether the claims are related
Joinder of claims: counterclaims
When the P brings a claim against the D, and the D brings an additional claim against the P
A counterclaim may be brought whether it is related or unrelated to the P’s underlying claim
Joinder of Claims - Compulsory Counterclaim in VA vs. FRCP
In FRCP, if the D has a counterclaim that arises from the same T/O as the P’s original claim, the D must bring that counterclaim.
In VA, no compulsory counterclaim rule.
Joinder of claims: Cross-Claims
A claim brought by one party against a co-party (most often a D against a co-D)
Must relate to the same T/O underlying one of the claims in the original action
Permissive, never compulsory
Most commonly contribution or indemnity actions
Joinder of Claims = Third party claims: Impleader
A claim brought by a D (also called the 3rd Party Plaintiff) against another party not yet in the lawsuit (also called the 3rd party Defendant)
Claims must allege that the new party is responsible for all or party of the original Defendant’s liability
Key difference from a cross-claim is that in a cross-claim, BOTH parties are already in the lawsuit, but in an impleader claim, the new party was not originally sued
The SOL is an affirmative defense, and the D must….
raise it for the defense is waived.
Deadline for filing a claim.
SOL vs. Laches
1. Laches only applies to ____.
2. Laches bars suits where the Plaintiff has _____ pursuing a suit.
3. Laches can impose a shorter _____ than would otherwise apply under the SOL.
- Suits seeking equitable relief
- Unreasonably delayed
- Timeline
SOL vs. Statutes of Repose
1. SOL = Time limit starts ______ and can sometimes be extended.
2. Statute of Repose: Time limit starts from a _______ and usually cannot be extended, regardless of the situation.
1. Statute of repose works like an SOL, except that it imposes an ____ on when a suit can be brought.
2. A SOL might not start running until later, so a statute of repose sets an absolute limit on _____.
- After the event
absolute limit - specific trigger event (like manufacturing or completion of a service)
- Absolute limit
- when a suit can be brought.
No tolling or exceptions on SOR
SOL - Accrual AKA when does the clock START ticking?
Accrual occurs when the injury actually occurs, NOT when the injury is discovered.
SOL - Accrual exceptions
1. Fraud or mistake
SOL begins to run when the fraud or mistake is _____ or ________ whichever is ____.
2. Certain medical claims
In exchange for a more generous discovery rule, the SOL is shortened to ____ after it was discovered or should have been discovered.
- discovered or reasonably should have been discovered, whichever is earlier.
- 1 year.
SOL - Tolling, AKA when does the clock STOP ticking?
What are the 3 circumstances of tolling?
Tolling stops the SOL from running.
Even though a particular event might toll the SOL, other events can restart the SOL.
Suit is pending, Obstruction by the D, and Lack of Capacity to sue
SOL - Tolling:
#1 Suit is pending. After filing a lawsuit, service of process is not necessary to toll the SOL.
—- So if the SOL ends on May 1, and the Plaintiff filed on Feb 1, but did not serve the Defendant until June 1, it is OK = the lawsuit is properly filed.
—-If P filed on February 1st and the SOL ends on May 1, but the P’s lawsuit gets dismissed without prejudice, the SOL restarts, and the P can use the unused portion of the SOL, 3 months, to refile.
*NOTE that dismissals at the request of the PLAINTIFF - i.e. nonsuits - have special rules.
SOL - Tolling:
#2 Obstruction by the D
If the D does something to keep the P from filing suit, the SOL will be tolled. Obstruction occurs when the Defendant:
- Files for bankruptcy
- Hides the injury (SOL is tolled during the period in which P reasonably assumed the issue would improve)
- Takes curative actions (SOL is tolled during the period in which P reasonably expected the D’s actions to cure the issue).
SOL - Tolling:
#3 Lack of Capacity to Sue
A. Minor in ordinary case: if the P is injured when they are a minor, the SOL is tolled until P is _____ or ______.
B. Minor in a medical malpractice case: Ordinary 2-year SOL applies unless the minor is younger than _____ when injured, in which the minor has until they are ___ years old to sue.
A. An adult or emancipated
B. 8; 10
SOLs in the Context of Nonsuits
-A P may voluntarily dismiss the suit, but may want to refile later.
-Dismissal is without prejudice
- A Plaintiff who nonsuits her case has __ months to refile or the remainder of the SOL, whichever is _____.
6; Longer
SOL - how to calculate time?
- Always start counting on the _____ the triggering event.
- The triggering event is the day that _____ the clock ticking - usually the date of the injury.
- The SOL will expire on the _______ as the triggering event, in the year dictated by the length of the SOL.
- If the expiration of the SOL falls on a day when the court is closed - i.e. weekend or legal holiday - the SOL is extended to _______.
- Day after
- starts
- same day
- the next business day.
Service of Process:
Summons + Copy of Complaint
What is a summons?
Formal document issued by the court commanding the D to respond to the allegation
Service of Process is done by whom?
- Sheriff/deputy sheriff of the jdx where the person served is located, or a contiguous jdx.
- Disinterested person - private person who is not a party, family member, or attorney for a party.
Must be at least 18 years old.
Service of Process – by when?
P must serve the D within 1 year of the complaint
If the P fails to serve process within that time, the court will dismiss the lawsuit with prejudice, unless the P can show that she exercised due diligence in attempting to complete service.
Service of Process - How is Process Served?
Natural Person- Resident of VA
VA has three methods, but MUST BE TRIED IN ORDER:
- Personal Service = actual, physical delivery to person; wherever the person is located, at home, work, restaurant, etc.
- Substituted service = actual, physical delivery to some other person close to the D; left with a family member, at least 16 years old, who resides at the defendants home.
- Posting = server posts process on the front door of the D’s usual place of abode AND _mails a copy of process to that same address
NOTE This method of service cannot support a default judgment unless a copy of service was mailed to the D at least 10 days before judgment.
Non-residents can be served the same ay, but service may also be made on the Secretary of the Commonwealth
SOP - Entities (corp, LLC, pship, association, etc.)
Service on an officer, director, or registered agent
- If a general partnership, can serve a general partner
If no registered agent: service can me made on any agent of the entity.
Return of service
the court needs to know when to set deadlines for the D’s response
After serving process, the server has 72 hours to file proof of service with the court
SOP - Waiver
D agrees to acknowledge the lawsuit without formal service of process
P can send the defendant a request for waiver.
D is obligated to minimize the cost of service and accept the request for waiver.
If D fails to waive service, the D is responsible for the cost of service, if the D does not waive for good cause.
Defendant’s response to SOP
Must respond within 21 days
If waived SOP, within 60 days from the date of the waiver
OR, if the defendant is out of state, 90 days to respond
Optional Response to a Complaint - File a motion (PART 1)
- Motion to dismiss for lack of SMJ
- Motion to quash service of process
- motion to dismiss for failure to serve process
- Motion objecting to venue
- Motion to dismiss for lack of SMJ - argues that the P has filed suit in the wrong court
- Motion to quash service of process - challenges the courts personal jurisdiction
- Motion to dismiss for failure to serve process - argues that the service has not been served correctly.
- If the servers failure to service was innocent and reasonable, VA will deem service to be proper.
- Motion objecting to venue - argues that the P filed in the wrong venue
Optional Response to a complaint -
File a motion (PART 2)
- Motion for bill of particulars
- Motion craving oyer
- Demurrer
- Plea in bar
- Motion for bill of particulars - argues that the D cannot respond to the complaint without more information (describe claim or defense adequately to respond)
- Motion craving oyer - Ask the P to provide a document referred to in the complaint, and which is essential to the P’s claim
- Demurrer - Federal Equivalent - 12(b)(6) motion to dismiss for failure to state a claim. Argues that the P’s allegations fail to state a claim upon which relief can be granted (missing violation of law that gives the P right to relief).
- Plea in bar - used when a D has a complete defense to one of the P’s claims. Allows the D to put on evidence of an affirmative defense.
Required response - Answer
What does an answer typically contain?
If the court denies a D’s pre-answer motion, the D has 21 days from the denial to file an answer
Answer typically contains admissions, denials, and affirmative defenses.
Amending pleadings -
A pleading is the complaint or answer
- in VA, a party MUST file a motion seeking leave to amend and include the amended pleading.
- The standard - a leave to amend should be liberally granted in furtherance of the ends of justice.
VA courts will consider 3 factors:
(i) Movants bad faith (unreasonably delayed in seeking amendment)
(ii) Prejudice to non-movant
(iii) Futility (inquiry into the merits of the proposed amendment
SOL & Pleading Amendments — Adding a new claim
a claim added to a previously filed lawsuit will be deemed to be filed at the same time as the OG suit if the claim arises from the same T/O. as one of the claims in the original suit.
The amended claim “relates back” to one of the OG claims.
SOL & Pleading Amendments — Adding a new defendant
Unlike adding a new claim, adding a new party to a suit after the SOL has expired ismuch harder (usually impossible).
In order to add a new party to a lawsuit AFTER the SOL has expired, three factors must be satisfied:
1. Claim against new party must relate back to one of the OG claims (same T/O)
2. The new party must have had ACTUAL notice of the suit within the time in which the OG defendant had been served with process – AKA SOL + 1 year for SOP.
3. The new D expected to be sued but was not sued because of a mistake in identity by the plaintiff.
Scope of Discovery: VA (state court) – 5 factors
“_R_eally _W_ant _P_rivate _U_nknown _E_vidence”
1. Relevance
-(insurance coverage is permitted. Net worth is not generally relevant, but may be if the P is seeking punitive damages).
2. Work product
- Doc or tangible object created by party or party’s atty in anticipation of litigation. Generally NOT discoverable, but if substantial need exists + party cannot otherwise obtain crucial facts it may be allowed.
3. Privilege
- Protects certain information from discovery for public policy reasons (A-C privilege is most common = communications made for purpose of obtaining or rendering legal advice)
4. Undue Burden
(i) discovery sought is unreasonably cumulative or can be obtained from less burdensome source/way
(ii) party seeking discovery has already had ample opportunity to obtain the information
(iii) burden or expense of proposed discovery outweighs its benefits
5. Experts
Can usually only obtain information about a testifying expert (final report + comms related to compensation + comms relating to the data provided by the atty to expert)
Discovery Tools: Party Discovery
- Interrogatories - 30
- Requests for admission - 30
- Requests for production of documents or things or entry on land - No limit but excessive requests may be curtailed if it amounts to undue burden
- Request for physica/mental exam - must be relevant + court approval
- Depositions:
(i) Federal court - 10 depos without leave of court
(ii) VA - no limit
Discovery - Depositions
- party may only use deposition at a hearing or trial if the party against whom deposition is used had a reasonable opportunity to be present at the deposition, and only according to the following conditions:
- depo of party or unavaible non-party can be used for any purpose
- depo of present non-party can be used to impeach the deponent.
-Party may depose a witness before filing suit if there is a reason to believe that the witness will not be available for depo or testimony after suit has been filed.
Non-Party Discovery: Subpoenas
Seek information relevant to claim or defense from non-parties
Two types:
1. Subpoena for production (re: documents, things, access to land)
2. Subpoena for deposition testimony
A non-party can object to subpoena by asserting that it seeks information outside scope of discovery
Time to respond: Discovery requesta
VA Rule: 21 days
Fed Rule: 30 days
Pre-trial disposition:
Default judgment
If D is properly served with process but fails to respond within the allotted time, court will assume that D does not contest the allegations.
Consequences for Defendant:
-Wavier to right of jury trial
-Can no longer contest liability on the merits, but can contest value of damages
-No longer entitled to any further notice of proceedings in the case
*Exception = if D has an attorney, notice must be given to attorney
*Default does NOT automatically entitle P to a judgment against D —after entry of default, P must move for default judgment. If damages are plain on the face of the complaint, court will order award. If not self-evident, court will hold a hearing to set damages, and D may participate in damages hearing.
Escaping Defaults & Default Judgments
if default has been recorded but default judgment has not been entered….
Defendant can file a motion for leave to file a responsive pleading, and the motion must show good cause for failing to respond
*Court may condition leave on D being responsible for costs of delay
Escaping Defaults & Default judgments
if a default judgment has already been answered, the D should….
file a motion to set aside the default judgment, which must be made within 21 days of entry of judgment (unless judgment was fraudulent or w/o jdx)
Nonsuit (Part 1)
- Nonsuit allows P to ____ litigating a case without ___ the chance to re-litigate it later.
- Nonsuit is a dismissal ______.
- The ____ nonsuit is as of right, and subsequent nonsuits require _____.
- stop; forfeiting
- without prejudice.
- First; leave of court
Nonsuit (Part 2)
- P can file nonsuit:
(i) before the cause is submitted to the _____ for resolution
(ii) before a motion to strike the evidence has been _____.
4(i) fact-finder
4(ii) sustained/accepted
Nonsuit (Part 3)
- If suit involves related counter-claims, cross-claims, or impleader claims no party involved in those claims can nonsuit without ______.
- Permission of opposing party
**If opposing party does not grant permission for nonsuit, only option is outright dismissal _with prejudice__
Nonsuit (Part 4)
- If P wishes to refile in state court after nonsuiting, P must file in the same ______ to prevent judge shopping.
- P can also refile in _____.
- Venue
- federal court
Nonsuit (Part 5)
8. Statute of limitations for nonsuit: Must refile within ______ or the remainder of the SOL, whichever is ______.
- 6 months; longer
Summary Judgment: Definition
Motion that asserts that the facts are clear and, as a matter of law, the movant wins
Courts only job is to determine (i) whether there is a genuine dispute as to any material fact, and if not, (ii) does the law determine that the movant should win
Summary Judgment - in general
- Court does not weigh parties’ evidence; must construe the evidence in the light most favorable to the ______.
- Evidence presented to the court in documentary form rather than live testimony, using _______.
- In Virginia, the movant generally cannot use _____ to support an SJ motion, but _____ can oppose SJ using depo transcripts. (
- Non-movant
- interrogatories, requests for admission, and documents produced during discover to support/oppose motion for SJ
Summary Judgment - Virginia
1. In Virginia, the movant generally cannot use _____ to support an SJ motion, but _____ can oppose SJ using depo transcripts.
However, there are exceptions: Movant can use depo excerpts if:
(i) Movant contests availability of ______.
(ii) The claim is between two business entities for _____; or
(iii) Parties ___ to use depo excerpts
- Depo excerpts; non-movant
(i) punitive damages
Does NOT apply to PD claim or demand based on the operation of a motor vehicle by any person while under the influence
(ii) $50,000 or more
(iii) agree
Trial and post-judgment motions: Jury Trials
Right to a jury trial
1. In Circuit Court, either party has the right to a jury trial in an _____.
2. No right to a jury in ______ or in ______ actions
- action at law
- GDC; equitable
Equitable actions are injunctions, specific performance, reformation of a contract
Equitable Actions are…
injunctions, specific performance, reformation of a contract, etc.
Party seeking trial by jury must assert the right…
in the complaint; or any party can demand a trial by jury after the commencement of the action, but no later than 10 days after service of the last pleading
even if neither party demands trial by jury, the court may decide on its own to have a jury trial
Empaneling a jury: Size
- Personal injury case involves more than ______.
- Non-personal injury case involves more than ____.
- Jury composed of ____ persons.
- 50,000
- 25,00
- 7 jurors
Empaneling a jury: Size
1. Personal injury case involves ____ or less, or
2. non-personal injury case involves ______ or less: jury composed of _____ persons.
$50,000
$25,000?
5 jurors
Empaneling a jury:
If parties agree, a jury of ___ persons is permissible.
3
Composition of the jury
Potential jurors may be excluded for cause (i.e. bias)
Each side also has ____ peremptory strikes
Preemptory strikes cannot be used to discriminate on the basis of _____.
3
Race or gender
Jury instructions
Parties must object to proposed jury instructions before a case is submitted to the jury, to preserve the issue for appeal
Judge cannot share his own opinion of the case, but the court will instruct the jury on the applicable law
Jury deliberation
jurors can take the jury instructions into the jury room, but may not take pleadings
Exhibits may be taken into the jury room upon request of the jury
If jury needs to view a specific place or premise, the court may allow it
What is a motion to strike the evidence in VA?
Equivalent to federal motion for JMOL
Made at trial and based on actual evidence presented
When must a motion to strike the evidence be brought?
Either party can move to strike the evidence - but it is most commonly the Defendant after the Plaintiff has presented their evidence
Both parties can move after conclusion of all the evidence
What is the standard for a motion to strike the evidence?
Court applies a summary judgment standard
Court will consider all evidence presented in the light most favorable to the nonmovant, and determine whether a reasonable jury could. rule in non-movant’s favor
Post judgment relief -
Relief sought within 21 days - court retains power to ____.
reconsider, modify, and vacate the judgment
Post-Judgment Relief
A court will set aside a default judgement if…
“justice so requires”
After expiration of 21 day period, may overturn default judgment only in limited circumstances.
Post-Judgment Relief
Motion to set aside (judgment as contrary to evidence)
Court will only grant motion if _____ could have reached the verdict in question.
Similar to federal renewed judgment as a matter of law, except that movant need not have made a motion ______ at trial.
no reasonable jury;
motion to strike the evidence
Motion for a new trial
Motion may be based on:
1. _____ of parties, judge, juror, witness or some other party tainted the results
2. ______ error by the court
3. Newly discovered evidence that:
A. Was discovered after trial and could not have been reasonably discovered _____ trial.
B. Is not merely _____ or corroborative; AND
C. Is of sufficient power that it would have likely produced an opposite result.
4. Court must rule on a motion for a new trial within _____ of the motion being made.
- Misconduct
- Legal
3A. before
3B. cumulative - 45 days
Relief sought beyond 21 days
a. Relief from default judgment: defendant must show ____ on the court; or that the judgment was ___.
(i) Must be brought within ____ years of the date of judgment
b. correction of a clerical mistake: the judgment contains a ______ error, the court can fix this error outside the 21-day post-judgment window.
a. Fraud; void
(i) 2 years
b. typographical
Appeals - GDC to CC
Perquisites
- There must be a final judgment
- An amount in controversy of more than $20
Appeals - GDC to CC
Procedure
1. Losing party must file a notice of appeal within ___ days of entry of judgment
2. Notice is filed in __.
- 10
- GDC
Appeals - GDC to CC
Standard of Review
1. Standard of Review in CC is ___ on all issues.
2. if the _____ is appellant, the court may permit the ___ to increase her ad damnum
- de novo (repeats the whole case)
- defendant
Appeal - CC to COA
Perquisites
FINAL JUDGMENT
A final judgment is a court order that:
Disposes of the entire case; AND
Leaves nothing further to be resolved by the court
Appeal - CC to COA
Perquisites
Partial Final Judgment
May apply in a multiparty case
Must find that decision on appeal wont affect remaining trial proceeds (and visa versa)
(Think of one party getting a motion for SJ & getting a partial final judgment, the P can appeal this decision even though the case continues with the other party)
Appeals - CC to COA
Certain interlocutory orders
Order issues during the pendency of a suit, rather than at the end of the suit.
- Orders regarding preliminary injunctive relief
- Certified orders
- Collateral orders
Appeals - CC to COA
Certain interlocutory orders:
Certified Orders
District courts have the power to “certify” an issue for immediate appeal, provided that:
(i) issue is based on a controlling question of law
(ii) there is a substantial ground for difference of opinion
(iii) resolution will materially advance the litigation and
(iv) parties consent
Appeals - CC to COA
Certain interlocutory orders:
Collateral Orders
An order that conclusively resolves an important question that is separate from the merits and would be effectively un-reviewable if the losing party were forced to wait until the conclusion of the suit to appeal
Look for an order declaring that a party is not immune
Appeal - objection in lower court requirement
a party may not appeal a decision unless that party objected to the decision in lower court
if an appellant failed to object, court of appeals will only consider the appellant’s argument for good cause shown.
Appeal - Procedure
Appellant must file notice of appeal in the circuit court within ____ days of the order or final judgment being appealed.
If appellant fails to to timely file notice, court of appeals lacks ____ to hear the appeal.
30 days
Jurisdiction
Appeal - Standard of Review for COA
De novo for all issues of law, high deference for all issues of fact
Appeal - Court of Appeals to Supreme Court
Appellant must file a ______ in court of appeals within ____ days of the adverse ruling.
Appellant must file _______ in Supreme Court within ____ of adverse ruling.
- Grant of appeal - may only be issued if the court grants the appellant the opportunity to appeal
Notice of appeal; 30 days
Petition for review; 30 days
Appeals - Supreme Court
Standard of Review
_______ for all issues of fact.
High deference to _______ for all issues of law.
De novo
Original fact finder
Declaratory Judgments
Relief is ONLY a judicial declaration of rights.
Requires an actual controversy over the rights in question.
Should not be used when another form of action is available.
Must be filed in circuit court.
Enforcement of Judgments
generally involves judicial seizure (and usually sale) of D’s property
Claim preclusion (res judicata)—
After a valid final judgment on the merits, sufficiently identical claims are barred between sufficiently identical parties
1. VA exceptions—separate actions permitted for __________ claims
that arise out of the same occurrence; and mechanics liens
personal injury and property damages
B. Issue preclusion (collateral estoppel)
—parties to a first action precluded from relitigating any
issue of fact actually litigated and essential to a valid and final personal judgment
1. Mutuality—required in VA
2. Criminal prosecution—generally no preclusion
Modifying an award - Arbitration Agreements
Upon an application, a court MUST modify an award if –
(i) it was based on an evidence miscalculation
(ii) the award addressed matters not before the arbitrator
(iii) the form of the award is incorrect in a way unrelated to the merits of the case
Vacating an arbitration award
MUST vacate an award if…
Procured by fraud
Arbitrator was biased or corrupt
Arbitrator exceeds powers
Arbitrators refused to postpone hearing after good cause was shown, and party’s rights were prejudiced
Mere error of fact or law is NOT grounds for vacating award
Venue in county or city in which arbitration occurred
Enforcement of judgments
REAL Property
general involves judicial seizure (and sale) of D’s property
Enforcement procedures differ according to type of property to be seized
Real property:
1. Docket judgment
(i) Circuit court where P won her suit will do this automatically
(ii) If D has real property in another jdx, P must docket judgment there
- File a creditor’s bill in equity
(i) must be filed in jdx containing the property P wants to seize
(ii) court will appoint a commissioner to sell property and use proceeds to pay P’s judgment
(iii) remaining proceeds revert to D
Enforce of Judgment
PERSONAL Property
general involves judicial seizure (and sale) of D’s property
Enforcement procedures differ according to type of property to be seized
- Docket the judgment
-No automatic docketing - File a creditor’s writ of fieri facias
- Must be filed in jdx containing the property P wants to seize
- Court will order sheriff to seize property, sell it, and use proceeds to pay P’s judgment
Enforcement of judgments
Money owed to D
An asset is entitled to P (e.g. paycheck, saving account)
(i) Docket the judgment
- Must be docketed in jdx where D has a right to money (location of bank or place of employment)
(ii) File a credits writ of fieri facias
- Must be filed in jdx containing the money owed to D
(iii) Ask court to issue a garnishment summons
- Order requires bank or employer to pay money the court
- Court will then turn over to P
Claim Preclusion:
Very similar to fed claim preclusion
Requirements:
1. Claim in suit 2 arises from the _____ underlying suit 1.
2. Suit 2 is between the same _____ as suit 1.
3. Ended in a valid final judgment on the ____.
- Transaction or occurrence
- Parties
- Merits
- Valid: issuing court must have JDX
- Final: order that completely disposes of the case
- On the merits: non-merits judgments are based on jdx or venue; all other judgments are on the merits
Claim Preclusion: VA distinction: Plaintiff with ______ and _____ injury claims arising from the _same T/O need not bring those in the same suit.
personal and property injury
Issue Preclusion (Collateral Estoppel)
VA Distinction
Does not permit mutual issue preclusion, instead second suit MUST involve the same PARTIES.
Requirements:
(i) Same issue in suit 1 & 2
(ii) Same parties in suit 1 & 2
(iii) Suit 1 ended in valid judgment, judgment on the merits
(iv) Issue in suit 2 must have been fully litigated and decided in suit 1, and essential to the judgment in that suit.
Land Actions
Jdx - must be brought in circuit court, except for unlawful detainer, which may be brought in CC or GDC.
Venue - must be brought in the district where the land is located.
Unlawful Detainer
Available if person fails to relinquish possession of land to the party entitled to
Typically used in LL-T disputes
Should not be used when the title to property is at issue
Ejectment
Brought by someone not in possession of land who claims right to lawful possession
Ejectment actions, unlike unlawful detainer, determine both possession and title
Quiet Title Action
Use to clarify a title to real property
Can sometimes address same issues as an ejectment, with two distinctions:
a. Parties in possession of land
(i) Cannot bring ejectment action because there is no one to object
(ii) Must bring quiet title action to clarify title to property
b. Remedies at law versus equity
(i) ejectment: action at law
(ii) quiet title: equitable action
-Because equitable actions may not be filed if an action at law is available, a quiet title action may not be used if an ejection action is available.
Action to set boundary line
may be brought between adjacent property owners
Claiming interest in the same property
Partition
Asking court to draw a new boundary line dividing a single parcel of land into multiple parcels
VTCA - Virginia Tort Claims Act
What is it?
- Allows P to sue CW for certain torts committed by CW employees
- Does NOT apply to local governments (cities, counties, school boards, etc.)
- Provides that CW is liable for torts to the same extent a private individual engaged in the same conduct.
- Only applies to torts by the CW employees acting within the scope of their employment.
VCTA - Timeliness of Suit
a. Potential P must serve notice on CW within 1 year of incident.
b. Failure to serve notice completely barrs claim under VTCA
c. Upon notice, the CW may choose to pay claim.
If CW refuses to pay or fails to respond within 6 months, the P may bring suit.
No suit may be brought under VTCA sooner than 6 months after notice.
All claims must be filed within 18 months of notice.
VCTA - Limitations
- Compensatory damages: No more than ____
- Punitive damages: ___.
- claims against legislators or judicial officers: _____.
- claims by prisoners: only after exhaustion of ____.
- 100K
- Not allowed
- Not allowed
- Administrative remedies
Wrongful Death Action
A civil suit predicated on the death of a person may be brought by the decedent’s personal representative.
Proceeds: Damages are distributed first to the surviving spouse, children, and grandchildren. IF none exist, then decedents parents and siblings.
Wrongful Death Action – Compensatory Damages
Mental Anguish
Loss of financial benefits and services
Medical and funeral expenses
NOTE Punitive damages are also available where the death was caused by intentional or reckless conduct.
Wrongful death action- SOL
Within 2 years from the date of death
Medical Malpractice (P1)
Health care provider: physicians, dentists, pharmacists, counselors, etc.
Specific procedures for negligence actions:
1. Before filing suit, P must obtain a written opinion from an expert.
2. An expert opinion must provide that:
(i) Health care provider breached the standard of care
(ii) Breach proximately caused the P’s injuries.
*Need not be admitted into evidence, but court may inquire into experts opinion on camera
Review Panel
- Within 30 days after response has been filed, either party may request review by a medical malpractice review panel.
once review is requested, lawsuit is stayed pending that review
Med Mal review panel will issue an opinion on whether health care provider was negligent or not
After review is complete, lawsuit may resume and either party may use the opinon at trial.
Medical Malpractice (P2)
Review Panel
(1) Within 30 days after response has been filed from the expert, either party may request review by a medical malpractice review panel.
(2) Once review is requested, lawsuit is stayed pending that review
Med Mal review panel will issue an opinion on whether health care provider was negligent or not
(3) After review is complete, lawsuit may resume and either party may use the opinion at trial.
Timing Rules
A. Day of event
1. If act must be performed before a motion or proceeding—day of motion or proceeding is not counted; day on which act is performed is counted
- If act must be performed after an event or judgment—day of event or judgment is not counted
- Response dates—party may have additional response time depending on service; one additional day for service after 5:00 pm, but three additional days if served by mail
B. Weekends and holidays—if last day falls on weekend or holiday, party has until next day the courthouse is open
Extraordinary Writs
Mandamus
compels a public official to perform a purely ministerial duty imposed by law;
must be no adequate remedy at law;
initiated by petition under oath stating grounds;
jurisdiction in CC and appellate courts; GDC has authority only to enforce Freedom of Information Act
Extraordinary Writs
Prohibition
prohibits public official from exceeding authority;
initiated by petition under oath stating grounds;
jurisdiction in CC and appellate courts; GDC has authority only to
enforce Freedom of Information Act
Extraordinary Writs
Quo Warranto
determines whether D holds public office; initiated by Attorney General or any interested person;
jurisdiction in only CC;
file application under oath;
D entitled to jury trial; granting the writ is within the discretion of the court
If a party seeks discovery of a non-testifying expert witness’s testimony, they must show that…
…exceptional circumstances exist making it impracticable for the party to get information by other means.
Under those circumstances, the court can order the party who hired the expert to make the facts or opinions known to the expert available. This could be the case in litigation involving a very new or unusual subject, in which there are a limited number of experts or publications.
Under Virginia’s Supreme Court Rules, a party may serve upon another party written requests for the admission of any discoverable matter. A request for admission is made for purposes of the pending action only, and an admission made in response to such a request may be used against the admitting party only in the pending action.
The effect of an admission made in response to a request for admission is that the admitted matter is…
…conclusively established, unless the court on motion permits withdrawal or amendment of the admission.
The person filing a request for discovery, response, or objection must sign the document regardless of whether she is an attorney or a pro se litigant. By signing the document, the attorney or pro se litigant is warranting that…
…it is consistent with Virginia law, not filed for the improper purpose of harassment or delay, and is not unreasonable or unduly burdensome.
A document that is unsigned will be stricken unless it is signed upon being brought to the attention of the party making the request.
After a case is at issue, a party can file a motion for summary judgment alleging that there are no genuine issues of material fact when…
…all pleadings have been filed.
The motion informs the court that the party believes there are no genuine issues of material fact regarding an issue in the litigation.
This motion, however, is inappropriate in a case involving a divorce or annulment.
Please note that a party may file a motion for partial summary judgment on an issue, such as liability, even though a factual dispute exists on the amount of damages owed.
Motion for a new trial
In VA, when a court finds as a matter of law that the jury’s award of damages is inadequate, it can either..
… order a new trial or tell the defendant to pay additional damages. However, if either party does not agree to the order of additional damages, the court must order a new trial
It is true that a court need not grant a new trial when granting a motion to set aside a verdict. Courts can only grant this motion when…
the jury verdict is plainly wrong or without credible supporting evidence.
However, if there is enough evidence available to the court to enable it to decide the case on the merits, the court must do so.
Also, motions to set aside the judgment (not verdict) are generally used in situations of fraud, accident, mistake, or surprise.
A statement to a circuit court requesting that it certify a matter for interlocutory appeal must include several items. It must…
- Briefly analyze the existing law on the issue,
- Ask the court to agree that there is substantial ground for difference of opinion, there is no clear controlling precedent, determining this issue will dispose of a material aspect of the circuit court’s proceeding; and
- That the court and the parties agree that an interlocutory appeal is in the parties’ best interest.
