Virginia Civil Procedure Flashcards
GDC’s exclusive original jurisdiction
1) Specific personal property 2) Damages for tort or breach of contract 3) Other debt where claim does not exceed $4,500
GDC’s concurrent original jurisdiction
Amount claimed is more than $4,500 and does not exceed $25,000
GDC’s jurisdiction over other actions
1) Partition actions over personal property
To appear a “money only” claim to circuit court, what must be the amount in controversy?
More than $50
Deadline for filing a notice of appeal to circuit court
Within 10 days after entry of order and in writing
Who must pay court costs and an appeal bond to appeal a GDC judgment?
1) Plaintiff: court costs within 30 days 2) Defendant: court costs and appeal bond within 30 days
Deadline to make a motion for a rehearing
1) 30 days from judgment date 2) Judge must rule within 45 days from judgment date
Circuit court jurisdiction
1) Concurrent jurisdiction with GDC where amount claimed is greater than $4,500 and does not exceed $25,000 2) Exclusive jurisdiction where amount exceeds $25,000 3) Jury trials
Preferred Class A venue
1) Action involving land 2) Wills 3) Injunctions 4) Virginia Tort Claims Act 5) Dissolution of marriage 6) Distress actions
Preferred venue for actions involving land
Where the subject land, or any part of the land, is situated
Preferred venue for wills
Where will was probated, e.g., where decedent is a resident at time of death
Preferred venue for injunctions
1) To any judgment or judicial proceeding of circuit court, where judgment was rendered or proceeding is pending 2) To any judgment or judicial proceeding of GDC, where judgment was rendered or proceeding is pending 3) Where act is to be done, being done, or threatened to be done
Preferred venue for Virginia Tort Claims Act
1) Where claimant resides 2) Where act or omission complained of occurred 3) If claimant resides outside of VA or act/omission occurred outside of VA, the City of Richmond
Preferred venue for dissolution of marriage
1) Where parties last cohabited 2) If D is a resident, where D resides 3) If D is a non-resident, where P resides
Preferred venue for distress actions
1) Where leased premises are 2) Where the property liable to distress may be found
Permissible Class B venue
1) Where D resides or has his principal place of employment 2) Where D has a registered office, or has appointed an agent to receive process 3) Where D regularly conducts substantial business activity 4) Where the cause of action (or any part of it) arose 5) Where any of the Ps reside if: (i) all the Ds are unknown or are nonresidents; or (ii) there is no other forum
Permissible venue for an action to recover or partition personal property
1) Where property is physically located 2) Where evidence of such property is located 3) If neither apply, where P resides
Permissible venue for an action against a fiduciary appointed under court authority
Where such fiduciary is qualified
Proper venue for a contract claim
1) Where contract was made 2) Where the breach occurred
Motion to transfer
1) Must state where venue would be proper 2) Must state why venue is not proper where action was brought
Deadline for a motion to transfer
1) GDC: On or before trial date 2) Circuit court: Within 21 days of service on D (or within any extended period to file responsive pleadings)
When can a court transfer a case on its motion?
In a divorce or annulment case within 60 days after service of process, with notice to parties
When may a court retain a case even though it is the wrong forum?
Court finds that: 1) A substantial inconvenience to the parties or witnesses would result from transferring; or 2) Parties have agreed
What happens when a party fails to make timely objection to venue?
Failure to object operates as a waiver
What constitutes service of process?
1) Circuit court: P’s complaint with the summons attached 2) GDC: Complaint, motion for judgment, or warrant
Who can serve process?
1) A sheriff and any deputy within sheriff’s jurisdiction and any contiguous jurisdiction 2) Any person if they are: (i) 18 years or older; (ii) Not a party or otherwise interested in the subject matter in controversy
If service of process in person is not possible, then what methods may be used?
In order: 1) Service to a family member 2) Posting at the front door or other door that appears to be the entrance door of the abode
Who qualifies as a family member for purposes of receiving service of process?
1) Over age 16 2) Who is not a temporary sojourner 3) At D’s usual place of abode 4) Server must explain the purport of the papers
If service is by posting, what must happen before the court can grant default judgment?
1) P must have mailed a copy of process to D at least 10 days prior 2) Must file a certificate of mailing with the court, certifying on a particular date, process was mailed to D
Proof of service
The report of the person serving the papers as to whether service was able to be made, and if so, in what mode
Curative statute
Process received in time by the person whom it is directed is good, except in suits for divorce or annulment of marriage * Notice is insufficient, requires complaint + summons
Service on a convict
1) Delivery to convict 2) Delivery to the officer in charge of such institution who shall deliver it to the convict
Service on a domestic corporation
Personal service on an officer, director, registered agent, or on the Clerk of the State Corporation Commission
Service on a town or city
1) Delivery to the city or town attorney 2) If none, the mayor, manager, or trustee
Service on a county
1) Delivery to the county attorney 2) If none, the attorney for the Commonwealth
Service on a foreign corporation
Personal service on an officer, director, registered agent, or on the Clerk of the State Corporation Commission
Service on partnerships & unincorporated associations
1) Partnership: A general partner 2) Limited partnership: A registered agent, or if not found, the Clerk of the State Corporation Commission 3) Unincorporated association: Any officer, trustee, director, staff member, or other agent
Non-Resident Motorist or Pilot Act
When a non-resident operates a vehicle or aircraft in VA, that person irrevocably appoints a statutory agent to receive process for any action arising out such operation of vehicle or aircraft 1) Motor vehicles: Commissioner of DMV 2) Aircraft: Secretary of the Commonwealth
Long-Arm Statute
Can acquire personal jurisdiction over D who engages in the following: 1) Transacting any business in VA 2) Contracting to supply services or things in VA 3) Causing any tortious injury by an act or omission in VA 4) Causing tortious injury in VA by act/omission in VA, if person regularly does business or derives substantial revenue from goods used or services rendered in VA 5) Causing injury in VA to any person by breach of warranty made in the sale of goods outside VA when one might reasonably have expected such person to use goods in VA, provided he also regularly does business in VA
How is service of process accomplished under the long-arm statute?
1) Send the process to where person resides and have them served there 2) Serve the Secretary of the Commonwealth, who is required to mail a copy of the process to the address of D
Can the long-arm statute be used on a VA resident?
Yes, if P files an affidavit with the Secretary of the Commonwealth stating he has exercised due diligence to find D without any success
Service on a statutory agent
1) Agent must mail a copy of the process to the last known address of D and file a certificate of compliance 2) The date the clerk’s office receives the certificate is the effective date of the process
To file a claim of negligence against a local govt entity, what must claimant do?
Within 6 months of injury, file a written statement including: 1) Nature of the claim 2) Time of the injury 3) Place where injury occurred * Notice is given to the county, city, or town attorney, or the chief executive or mayor
To file claim against a county, what must claimant do?
Present claim to the governing body (Board of Supervisors) before any suit is filed
The Virginia Tort Claims Act (VTCA) waives immunity for what type of tort claims?
1) Claim for damage to or loss of property or personal injury or wrongful death 2) Caused by the negligent or wrongful act or omission of any employee 3) Acting within the scope of his employment 4) Under circumstances where claimant would be entitled to recover against a private employer
VTCA limits liability to how much?
$100,000 or any applicable insurance coverage
Procedure for filing a VTCA claim
1) Notice in writing to Attorney General or Director of the Division of Risk Management 2) Notice is effective when received & may be hand delivered or mailed 3) Notice must occur within 1 year of accrual of claim 4) No suit can be filed until claim denied or 6 months after giving notice 5) Suit must be filed no later than 18 months from giving notice
How you do you file a pecuniary claim against the Commonwealth?
1) Present claim to head of department, division or agency 2) If head cannot be identified, give notice to comptroller 3) Notice must be in writing 4) Within 5 years of accrual 6) Suit must be filed within 3 years after disallowance
In rem jurisdiction
Order of publication may be entered with an affidavit filed stating one or more grounds: 1) D is a foreign corporation or nonresident individual 2) That diligence has been used without effect to ascertain the location of the party to be served 3) Sheriff has been unable to make service for 21 days * Must state last known address of D
What is contained in an order of publication?
Requires D to appear & protect his interests on or before date set, which cannot be sooner than 50 days from date of order. Order is published once a week for four consecutive weeks in newspaper
How can D accept process?
By: 1) Signing the proof of service 2) Indicating the location in which it was accepted
Failure to serve within one year
Court must dismiss action with prejudice (unless P used due diligence in trying to get service)
Motion to quash
Objection to any defect in process
When can a motion to squash be filed?
Prior to or simultaneously with any responsive pleadings
How can D challenge the lack of service within 1 year?
Make a special appearance to file a motion to dismiss with prejudice for the failure of P to serve him within 1 year
Can D file any pleadings on the merits and still object to the one-year service requirement?
No, that will waive the objection
What is the style of a case when P is a child?
X, an infant, who sues by her next friend, Y, Plaintiff
What is the style of a case when P is a person under a disability?
X, who sues by committee (or next friend)
VA’s sanction statute
Pro se party or counsel has duty to certify that: 1) He has read the pleading, motion or other paper 2) It is well-grounded in fact and warranted by law 3) Not for any improper purpose
How does someone become a counsel of record?
1) Notification to the court of appearing or representing oneself (in writing in circuit court) 2) Pro se litigant is treated for all notice and other requirements as “counsel of record”
Cap limitation on punitive damages
$350,000
How do you get the get judge to properly enter an order?
1) Tender an order endorsed by all counsel of record; or 2) Get a date, time, and place from court to make a motion t o enter the order & give written notice to all counsel of record along with proposed order
What happens to a court entered in violation of endorsement or notice requirements?
It is a voidable order, not void order
When must a responsive pleading be filed?
Within 21 days of service on D unless judge grants additional time
Motion for a Bill of Particulars
A responsive pleading that requests that the court order the other side to be more particular in the pleadings filed
Demurrer
A responsive pleading used to raise issues as to the form, style, allegations, or appropriateness of the pleading filed (e.g., allegations are not sufficient)
Requirements for filing a demurrer
1) Must be in writing and state specifically the grounds relied on 2) Can be filed before or concurrently with other responsive pleadings
What standard does the court use to rule on a demurrer?
1) Demurring party admits all facts pled by P 2) Demurrer does not admit conclusions of law
Motion Craving Oyer
Method by which one who is sued on a written document that is not attached to the complaint can ask the court to compel P to produce the document in question
Motion to Strike the Pleading
Challenge to sufficiency of a defensive pleading, such as an answer, plea of the statute of limitation, plea of payment, or demurrer
Motion to Set Matter for Hearing on Bill and Answer
Used to test sufficiency of an answer filed in an equitable claim. Unlike a motion to strike, the case is actually submitted to the judge on the merits, based on the pleadings, with no chance to amend answer.
Consequences of default by D in GDC
1) D waives all objections to admissibility of evidence 2) D is not entitled to notice of any further proceedings 3) D may still appear at a hearing on damages
Consequences of default by P in GDC
1) If neither D or P appears, judge dismisses action 2) If D appears on date case if first on the court’s docket but P does not, judge dismisses action without prejudice 3) If D but not P appears on trial date but P does not: (i) If D admits to owing any portion of P’s claim, dismissal without prejudice (ii) If D denies owing anything, dismissal with prejudice
Consequences of default by D in circuit court
1) D gives up any notice of further proceedings, unless there is a counsel of record 2) D waives right to a jury trial 3) D may still appear and litigate at a hearing on damages 4) Court may not may not enter default judgment in a divorce of annulment case; P must prove the case * No waiver of admissibility of evidence
Deadline for filing a counterclaim
1) Circuit court: Within 21 days of service on D 2) GDC: Any time before trial
Is filing a counterclaim ever compulsory in VA?
No, it is optional
Deadline for filing a cross-claim
1) Circuit court: Within 21 days of service on D 2) GDC: Any time before trial
Does a counterclaim or cross-claim need to relate to the subject matter of the complaint?
1) Counterclaim: No 2) Cross-claim: Yes
Deadline for a third-party complaint
1) Circuit court: Within 21 days after filing a responsive pleading, and thereafter, must obtain leave of court 2) GDC: Within 10 days after service on D or up to trial date, whichever is sooner
Can a party plead alternative theories of its claim or defense?
Yes, as long as they all arise out of the same transaction or occurrence
In VA, can P file separately a suit for a property damage claim and a suit for a personal injury claim arising out of the same facts?
Yes
Amendments to pleadings
1) Must get leave of court 2) Courts must liberally grant leave to amend
Right to have pleadings filed under oath
If not, must assert right by filing a motion to strike within 7 days of its filing or waived
Interpleader action
When one holds property that is the subject of competing claims, the stakeholder can ask judge to decide who is entitled to it
Lis pendens
Notice of pending litigation which may affect title to land: gives notice to bona-fide purchasers that litigation is pending
What must you show to win on a laches defense?
1) That delay worked to the disadvantage of the defendant 2) That delay warrants a presumption that the party waived his right to bring the claim * Only applicable to equitable claims in which no particular statute of limitations applies
Factors considered in a laches defense
1) Time lapsed 2) Effect of delay on other party’s ability to defend 3) Lost of evidence due to delay 4) Particular circumstances of case
Do statutes of limitations apply to the Commonwealth?
No, but it does run against municipal corporations
When does adding a party to a complaint relate back to the initial filing of the action for tolling the SOL?
1) Claim arose out of the same conduct, transaction, or occurrence 2) Within SOL period, new party received notice of action 3) New party will not be prejudiced in maintaining a defense on the merits 4) New party knew or should have known, but for a mistake concerning his identity, that action would have been brought against him
When does a new claim against initial D relate back to the date of the initial filing of the action for tolling the SOL?
1) Arose out of the same conduct, transaction, or occurrence 2) Amending party was reasonably diligent in asserting amended claim 3) Parties opposing amendment will not be substantially prejudiced in litigating on the merits
SOL for personal injury
2 years
SOL for sexual abuse occurring during infancy or incapacity
20 years (only 2 years for an adult)
SOL for tortious injury to property
5 years
SOL for claim of parent for expense in curing infant from personal injuries or loss of services
5 years
SOL for damages for fraud
1) Money damages: 2 years 2) Equitable relief: Look toward other SOLs or laches * Burden of proof: clear and convincing evidence
SOL for actions on written contract (other than UCC contract for sale)
5 years
SOL for action on oral contracts
3 years
SOL for action for settlement of accounts
Action by one partner against another for settlement of partnership accounts, settlement of accounts between merchants or joint venturers: 5 years from cessation of dealings
SOL for actions on bond of a fiduciary
10 years
SOL for actions on an out-of-state contract
The shorter of: 1) Virginia’s SOL or 2) The state law that governs the contract
SOL for actions based on UCC contracts of sale
4 years * May agree to reduce period to not less than 1 year
SOL for wrongful death actions
2 years from death of injured person
SOL for action on negotiable and non-negotiable notes
1) 6 years from date of demand 2) If no demand, 10 years
SOL for libel, slander, or insulting words
1 year
SOL for all other personal actions
2 years
Statute of repose for damages caused by improvements to real property
Those performing or furnishing the design, planning, surveying, etc. of improvements to real estate are given a 5 year period, after which they are protected from any claims for damage to property, bodily injury, or wrongful death arising out of the defective and unsafe condition of an improvement
SOL for malpractice claims against attorneys and architects
Treated as contract claims
SOL for deed of trust and mortgages
1) 10 years from when last payment is due 2) If final payment date can’t be determined, 20 years from the date of the deed of trust
SOL for enforcing circuit court judgment
20 years (extendable by another 20 years)
SOL for enforcing GDC judgment
10 years, unless recorded in circuit court, then 20 years
SOL for actions to recover land
1) Action for ejectment: 15 years 2) Easement by prescription action: 20 years
SOL for detinue actions
Action to recover specific personal property; SOL period is keyed on the theory of recovery (contract, property injury)
SOL for fraudulent conveyances
No SOL, timeliness is based on laches
SOL for voluntary conveyances
5 years from the recordation of the deed of conveyance, or if not recorded, from when it was or should have been discovered
SOL for testamentary charges on land
20 years * Period starts to run from date that bequest was made payable under the will, or if none specified, on date of death
Two approaches to when SOL begins to run
1) Accrual: when harm occurs 2) Discovery: when injured person discovers or reasonably should have discovered the injury
When does SOL for personal injury begin to run?
When injury is received, with some exceptions for: 1) Medical malpractice 2) Asbestos exposure 3) Sexual abuse during infancy or inacpacity 4) Products liability for breast augmentation
When does the SOL begin to run for medical malpractice?
1) Based on foreign object left w/o therapeutic or diagnostic effect, 2 year period is extended for 1 year from when object is (or should have been) discovered 2) Based on fraud that prevents discovery, 2 year period is extended for 1 year from when injury is (or should have been) discovered * Never more than 10 years from the date of conduct
When does the SOL begin to run for negligent failure to diagnose a malignant tumor or cancer?
2 year period extended for 1 year from date the diagnosis of the malignant tumor or cancer is communicated to patient by a health care provider * Never more than 10 years from date of conduct
Continuing treatment rule for medical malpractice claims
If a healthcare provider is negligent and the treatment for the particular problem continues, the SOL begins to run when the relationship for the particular problem ceases
When does the SOL begin to run for asbestos exposure?
Cause of action is deemed to accrue when diagnosis of asbestos exposure illness is communicated to the patient by a physician
When does the SOL begin to run for sexual abuse during infancy or incapacity?
1) When disability is removed, if fact of injury is known, 2) If not known, when the fact is first communicated to the person by a licensed physician, psychologist, or clinical psychologist
When does the SOL begin to run for product liability actions resulting from breast augmentation?
When fact of injury and its causal connection to the implantation is first communication to the person by a physician * Applies only to provider of implanted device, not the health care provider who implanted it
When does the SOL begin to run for injury to property?
When harm occurs
When does the SOL begin to run for contract claims
1) Non-UCC contract claims: when breach of contract occurs 2) UCC contracts: when breach occurs* * For breach of warranty claims, when delivery of product is made ** If contract involving a course of dealing over period of time, then SOL does not run until contractual relationship ceases
When does the SOL begin to run for an action for fraud or concealment?
On date of discovery or when it should have been discovered by exercise of due diligence
When does the SOL begin to run for a claim of money on deposit with a bank?
When you make a written demand on the bank
When does the SOL begin to run for claims of contribution or indemnification?
When you have paid more than your share
When does the SOL begin to run for open accounts?
Every time you make a payment or charge on the account, the clock resets and begins to run again
When does the SOL begin to run for malicious prosecution or abuse of process
When the relevant criminal or civil action is terminated
When does the SOL begin to run for defamation?
When defamation occurs
What circumstances will toll the SOL?
1) Infancy or incapacitation (except med mal cases) 2) Death of a person (original SOL or 1 year after qualification as personal representative) 3) Stayed by injunction 4) Obstruction by defendant (action intended to obstruct P’s right to file the action) 5) Action dismissed without prejudice 6) Criminal prosecutions 7) New promise to pay contract claim in writing restarts clock 8) Promise not to plead SOL 9) Counterclaims & cross-claims: if related to P’s complaint, then SOL will toll based on date P’s claim was filed
When a fiduciary is appointed for an incapacitated person, when must claim be brought?
Within normal running of SOL or 1 year from fiduciary’s qualification, whichever is longer
Effect of criminal proceedings on a civil action SOL
1) If before SOL has run, the offender is arrested, then the time any criminal prosecution is pending does not count 2) If SOL has run before offender is arrested, then 1 year from end of criminal proceeding, but no later than 10 years after crime occurred
Are promises to not plead the SOL enforceable?
Yes, if: 1) The failure to enforce would operate as a fraud; or 2) In writing and: (i) Made during settlement negotiations (ii) Not made contemporaneous with any other contract (iii) Made for a period no longer than the applicable SOL period
Who has the burden to show that SOL has run?
Defendant, then burden shifts to P to show SOL has tolled
Is there a limit on the number of witnesses that may be deposed?
No
Limit on number of written interrogatories
30
Medical malpractice review panels
1) Either side can request review panel be convened by circuit court 2) Compromised of medical care providers, lawyers, lay citizens, and a judge 3) Determine whether malpractice occurred, whether D violated standard of care, and if there was a causal connection 4) Panel’s opinion can be offered into evidence by either side 5) Request must be made within 30 days from D’s filing of responsive pleadings
How many jurors in a jury?
1) If dollar claim does not exceed GDC cap, then 5 2) If dollar claim exceeds that cap, then 7
When must written demand for a trial by jury be made?
No later than 10 days from the service of the last pleading directed to the issue (i.e., answer), or waived
Must a jury verdict be unanimous?
Yes, and rendered in open court
Is there a right to jury for equitable claims?
No, except: 1) Suit to establish, impeach or probate a will 2) Suit to quiet title to real estate 3) Plea in equity (D raises a single-fact issue that will bar P’s claim, like infancy)
Difference between an advisory jury and “plea in equity” jury
1) For a plea in equity, judge must empanel jury and is bound by its verdict 2) For conflicting facts in dispute, judge has discretion to empanel a jury and is not as bound by the verdict
Deadline for objecting to a commissioner’s report
10 days
Jury instructions
1) Given prior to closing argument 2) Should be given if conflicting evidence and credible evidence on both sides 3) Given in writing and read to jury, and can be taken into jury room
Motion for summary judgment
Granted when there are no material facts in dispute and moving party is entitled to judgment as a matter of law 1) Cannot be based in whole or in part on any discovery depositions, unless both sides agree 2) Court can consider all pleadings, pre-trial orders, admission, interrogatories, and documents produced, other than discovery depositions 3) Once trial begins, court must strike the other side’s evidence before being authorized to grant SJ
Reversible errors during trial
1) Judge comments on the credibility of any witness or weight of the evidence 2) Counsel references the insurance coverage of D
Motion to strike the evidence
Raises a test of sufficiency of the other side’s evidence. Two rules involved: 1) Moving party is deemed to have admitted the other side’s evidence as true, and any conflicts are resolved in non-moving side’s favor 2) Non-moving side is entitled to the benefit of any reasonable inferences from the evidence
When is motion to strike proper?
Properly made by: 1) D when the P rests 2) D when both sides have rested 3) P when D rests
What is a nonsuit?
A voluntary dismissal without prejudice of the action
When does P have a right to take nonsuit?
Any time prior to: 1) Judge sustaining a motion to strike the evidence 2) Jury retiring to decide case 3) Action being submitted to court for decision
Once nonsuit is taken, in which court does that party have refile?
In same court unless it is without jursidiction
When can a party taking nonsuit refile?
1) Within 6 months (unless limitations period is contractually set) 2) Within original period of limitation, whichever is longer
When is a party unable to take a nonsuit?
When D has filed a counterclaim, cross-claim, or third-party claim, unless court decides that the claim can remain pending for independent adjudication
During which period can the court modify, vacate, or suspend a final order
21 days after entry of the order
Motion for a new trial or judgment notwithstanding the verdict (JNOV)
Court will order a new trial if finding on liability was erroneous or if damages award shocks the conscience
When the court rules in favor of the moving party for a motion for new trial, what options does the court have?
1) Grant a new trial 2) Grant a new trial, but only as to liability 3) Grant a new trial, but only as to damages 4) Put the parties on terms of additur (too low) or remittitur (too high), and if not accepted, then order a new trial
Bowers holding for personal injury awards
Can’t award exact amount of medical expenses alone without other damages for pain and suffering
Motion for new trial based on after or newly discovered evidence
Must allege and prove: 1) Evidence was discovered at the end of trial 2) Evidence is material 3) Evidence is not cumulative 4) Evidence could not have been discovered before trial with exercise of reasonable diligence 5) Evidence can be produced at a new trial
When must post-trial motions for a new trial be made?
Within 21 days of final order
When can a trial court grant relief from a default judgment beyond the 21-day period?
1) Fraud on court (2 years deadline) 2) A void judgment 3) Proof of accord and satisfaction 4) Proof that D was at the time of service of entry of judgment in active duty in the military
If a party was not in default but somehow didn’t get notice of the final order, what can the court do?
Within 60 days, (i) modify, vacate or suspend the order, or (ii) grant leave to appeal
When can a bill of review be brought?
For equitable proceedings only, after a final order, court can revisit matters and grant relief, when: 1) There are errors of law 2) There is newly discovered evidence
When must a bill of review be filed?
Within 6 months of final order
Suits for enjoin enforcement of a judgment
Applicable when there’s fraud or mistake resulting in D not getting actual notice of being sued: 1) Judgment ought not to be enforced 2) Good defense exists 3) Fraud, accident or mistake prevented D from defending himself 4) Absence of fault or negligence on part of D 5) Absence of any adequate remedy at law
Under the Uniform Arbitration Act, who determines if there is a binding agreement to arbitrate?
The court, not arbitrator
What are grounds for vacating an arbitration award?
Based on procedural fairness, such as: 1) Award obtained by corruption or fraud 2) Partiality on part of arbitrators 3) Arbitrators exceeded their powers 4) Improper denial of continuance; improper admission of evidence 5) No enforceable arbitration agreement
When must an application to vacate an arbitration award be made?
Within 90 days after delivery of a copy of the award to the party
When can a court modify an arbitration award?
On application being made within 90 days, on grounds that: 1) Evident miscalculation of figures or mistake in description of any person, thing or property in award 2) Arbitrators made an award not submitted to them and correction can be made without affecting merits of award 3) Award is imperfect in matter of form, not affecting the merits
Venue for an application to the court for vacating, modifying, or entering judgment for an arbitration award?
1) Where agreement provided for the arbitration proceeding to be held 2) If held, where it took place
When are written reports of medical treatment admissible?
Admissible for what they say so long as: 1) Other side gets a complete set of copies 2) Copies are provided at least 10 days in advance of trial date 3) Reports contains a sworn statement from health provider confirming that (i) person named was treated by him; (ii) report is true and accurate; (iii) any statement of costs is true and accurate 4) Hospital records can be admitted if a sworn statement of the custodian of records is attached stating that it is a true and accurate copy of the record *Only applicable in GDC or if GDC judgment is appealed to circuit court
To offer a medical bill into evidence, what must the proponent show?
1) The bill authentic 2) The amount of the bill is within normal and customary range of charges for medical service
When is the authenticity and reasonableness of a medical bill presumed?
P identifies the bill, an original or authenticated copy, and further testifies: 1) Identifying the health care provider 2) Explaining how he received the bill 3) Describing the services rendered 4) Stating that the services were for treatment of injuries at issue
When must a proponent of a medical bill furnish a copy to the opposing party
At least 21 days prior to trial date
When are written estimates of auto damage & repair admissible?
Through an itemized written estimate or appraisal by a person who asserts under oath: 1) He is qualified to determine the amount of damage 2) As to approximate length of time he engaged in work 3) As to the trade name and address of his business * If damages is more than $2,500, then a copy must be furnished no less than 7 days before trial
Mechanic’s statutory possessory lien
Mechanic’s lien has priority up to $800. Beyond that, third party liens take priority
Uniform Enforcement of Foreign Judgments Act
To enforce an out-of-state judgment against a VA resident: 1) File an authenticated copy of judgment in Circuit Court of VA 2) File an affidavit with name & address of debtor, and clerk will mail notice to him
Distress action
In rem proceeding by landlord for recovery of rent by proceeding against tenant’s tangible personal property
Which court has exclusive jurisdiction over distress actions?
General District Court
Detinue
Used to recover specific tangible personal property or a money judgment for its value. Must show: 1) P has a property right in the property 2) P has a right to immediate possession 3) Property is capable of identification 4) Property has some value 5) D had possession at some time prior to suit
What should a petition for pre-trial seizure (detinue) show?
1) Describe property and its value 2) Describe the basis of P’s claim 3) Allege on of the grounds for which attachment would apply (in a distress action)
What is necessary to exist before getting a declaratory judgment?
A real, live controversy
What can damages for wrongful death include?
Compensation for: 1) Sorrow 2) Mental anguish, solace, society, companionship, guidance 3) Income of decedent 4) Services, protection, care and assistance provided by decedent
Can creditors reach an award in a wrongful death action?
No, except for final medical bills and funeral expenses
Who are the beneficiaries of a wrongful death award?
1) Surviving spouse, children, and grandkids w/ dead parents 2) If none, parents, brothers, and sisters, and any other relative primarily dependent on decedent for support 3) If none, decedent’s estate
Unlawful entry or detainer
Litigates the right to possession, not title, or real estate. If plaintiff wins, he can recover: 1) Rent 2) Damages 3) An order for D to move out or face eviction by sheriff * Not subject to GDC cap
Ejectment
Method for trying title to land; P must recover on strength of own title
Suit to establish a boundary to land
Used instead of ejectment when the issue is the correct location of the boundary line
Partition suits
Asks the court to: 1) Divide the land if it can be done fairly; or 2) Order the land sold and divide the proceeds
Which tenants cannot bring a partition proceeding?
Tenants by the entirety
Sale or lease of land of a person under a disability (PUD)
Equitable proceeding and only circuit court has jurisdiction. Court will grant relief if it would promote the interest of the PUD, taking into consideration the rights of any other party. Proceeds of any sale pass on death as real estate.
Who must be made parties to judicial intervention of a sale of land of a PUD?
1) The PUD 2) Any fiduciary 3) All those who would be heirs or distributees of the PUD if he had died at the time of commencement of the suit
Two types of appeals
1) Appeals of right 2) Appeals by petition
Process for appeals by petition
Two-step process: 1) Appealing party petitions for an appeal, trying to show that (a) trial court erred; and (b) error was potentially prejudicial to appealing party 2) If petition is granted, there is a second phase involving the merits
Which appeals of right does the Court of Appeals hear?
1) Final decisions of Circuit Court reviewing the decisions of a state administrative agency 2) Workers Compensation Commission rulings 3) Final decisions of Circuit Court involving domestic relations matters 4) Interlocutory decrees in any of the above or in a case that involves an injunction or adjudicates the principles of a cause
Which appeals of right does the Supreme Court of Virginia hear?
1) Appeals from rulings of the State Corporation Commission 2) Capital cases where death sentence is imposed
Which appeals by petition does the Court of Appeals hear?
Final conviction in Circuit Court of a traffic infraction or crime, except where death penalty has been imposed
Which appeals of petition does the Supreme Court of Virginia hear?
Any judgment in a controversy concerning: 1) Title or boundaries of land 2) Condemnation of property 3) Probate of a will 4) Right of state to levy taxes 5) Final judgment of a circuit court in any other civil case
When the only thing in dispute is money, how much must be in dispute to appeal the case to the SC?
At least $500
In appellate courts, a required document is considered timely filed if:
1) Sent by registered, certified, priority, or express mail or by a third party commercial carrier for next-day delivery 2) If asked by the other side or clerk of court, you can produce the official receipt for delivery * In trial court, actual receipt determines the date of filing
Does filing post-trial motions extend time for filing an appeal?
No, only if circuit court modifies, vacates, or suspends the order
Which issues will the appellate court consider?
Those issues you have made a prompt objection to, stating the grounds for objection, except: 1) Issue goes to jurisdiction 2) For good cause shown 3) To attain the ends of justice
Standard of review in appellate court
1) Great deference to Circuit Court’s factual findings and view facts in the light most favorable to prevailing party 2) De novo review of issues of law
In the Court of Appeals, which cases can’t be appealed?
1) Traffic infractions and misdemeanor cases where no incarceration is imposed 2) Cases originating before any state administrative agency or VA Workers’ Compensation Commission 3) Cases involving domestic relations matters
In any petition for appeal, what must be included?
Assignments of error, specifying the errors and where in the record it shows you properly preserve the error
When and where must a notice of appeal be filed?
In trial court within 30 days of entry of order, with copy to the appellate court
Must an appeal bond be posted in TC initially with notice of appeal?
1) Yes, for appeals of right in the Court of Appeals 2) No, for other appeals. Can wait to see if petition is granted
For an appeal, what are the deadlines for filing a transcript or statement of facts in TC?
1) Transcript: 60 days w/ notice to opposing counsel 2) Statement of facts: 55 days w/ copy to opposing counsel and notice to TC
When must a petition for appeal be filed?
1) CA: 40 days of date record was filed 2) SC: 3 months after entry of order appealed from
When must the brief in opposition be filed?
1) CA: 21 days after petition for appeal is served 2) SC: 21 days after petition is mailed/delivered to counsel
Must a judge order a new trial when a juror has an improper conversation with a litigant?
No, the judge has discretion to decide
Can jurors be questioned about misconduct in the jury room?
No, but the judge may inquire about their conduct and conversations outside the jury room
