Virginia Civil Procedure Flashcards
How do you sue an incompetent?
Sue the fiduciary that was appointed (i.e., committee - french, guardian, conservator)
When can a court suspend, vacate, or modify its judgment or decree in the Circuit Court?
What happens after that?
During the 21-day period, which is “in the breast of the court”
Afterwards, the court loses jurisdiction, even if a motion is under advisement
What is a summons?
What is it called in:
- Circuit court
- General district court
The summons tells D that he has been sued
Circuit Court
- Summons
General District Court
- Either:
- Warrant
- Notice of motion for judgment
When does P have to respond to D’s response?
Only if D inserts new facts into the case and expressly requests that P respond to them
Then P has 21 days to respond in a reply
How can a special plea be raised?
- Separately
- As a motion to dismiss
- In the answer
If P is injured and sues, but before trial dies from the injuries, what is the effect on damages?
He cannot get pain and suffering
When can service be performed by publication in Virginia?
Only in cases concerning rights to property or status (i.e., never in personam jurisdiction)
When does a statute of limitations start to run?
Upon accrual of the cause of action
- The date of injury or breach, regardless of whether the P was aware of it at that time
- Not from date P discovered or should have discovered
In a court of equity, what is oral testimony called?
Ore tenus
What is the difference between an action for ejectment and an action for unlawful detainer?
Ejectment - ousting someone in possession of land
Unlawful detainer - ousting tenant to recover possession
When is there a jury trial in Circuit Court?
Same as in federal court, but based on state law and not the 7th amendment
But must be at law, not equity
On appeal from the GDC, what does the Circuit Court do?
Hears the case de novo
With regard to personal jurisdiction, what requires a special appearance, and what is okay for a general appearance?
No personal jurisdiction or service was nevere made - special appearance
Service was improper - general appearance is okay, but waived if not brought up at beginning
How is service performed under the Non-Resident Motorist Act?
P serves the Commissioner of Motor Vehicles with an affidavit of due diligence and D’s non-residence
What is a pretrial interlocutroy ruling?
How do you et it?
Where a party requests the court to certify to the appellate court regarding a matter in which:
- No substantial ground for difference of opinion
- No clear Virginia appellate precedent
- Determination will be dispositive of material aspect
- In best interest of parties to seek interlocutory review
After getting this certification, file a petition w/ Supreme Court within 10 days
What is forum non conveniens?
A court might dismiss without prejudice if all of the following are present:
- Cause of action arose out of state
- Cause of action was brought by non-resident of Virginia
- There is a more convenient venue outside Virginia
When can you move for a new trial?
What are the grounds for doing so?
While the case is still in the breast of the court (i.e., 21 days)
Grounds:
- Prejudicial error or misconduct by court
- Misconduct of party, attorney, juror, or third party
- New evidence
- Unfair surprise
- Excessive of inadequate damages
In GDC, if the court orders P to file a bill of particulars, or orders D to file grounds of defense, and they fail to do so, what can happen?
The court can enter summary judgment against any party
Has the Virginia Supreme Court ever allowed nonmutual collateral estoppel?
No
What are the two pleading types?
What does Virginia require?
Fact pleading and notice pleading
Virginia requires fact pleading (i.e., must include all facts necessary to back up allegations)
- Facts must be in numbered paragraphs
What tolls the statute of limitations? Service or filing?
Filing, so if service is not made until after the statute of limitations has run, that is okay as long as the suit was filed beforehand
But P must service process within 12 months of filing or else he cannot win judgment
What is an incompetent is sued without a fiduciary?
Same as with minor
In GDC, how does D respond to the civil warrant/motion for judgment?
By simply showing up on the return date and trying the case
If D wants more details, he moves for a bill of particulars (which court has discretion to grant)
How does an incompetent sue?
Either:
- Guardian sues
- Incompetent sues in own name, by next friend
What are a party’s options if a judge orders remittitur?
- Accept remittitur
- Accept remittitur under protest and appeal remittitur
- Reject remittitur and go through new trial
- If still aggrieved, appeal on basis that granting new trial was error, but only if:
- Made exception to order of new trial on the record
- If still aggrieved, appeal on basis that granting new trial was error, but only if:
Who bears the burden of showing the statute of limitation bars the claim?
D
What is the size of the jury in Virginia?
Case involves less than $25,000
- 7 jurors
Case involves $25,000 or more
- 5 jurors
Parties consent
- 3 jurors
Can a party seek discovery of another party’s insurance coverage that could not be admitted at trial?
Yes. Discoverable is broader than admissible
If your husband is unconscious and the two eyewitnesses to the accident intend to leave the country, what should you do?
- Become the husband’s fiduciary
- Subpoena the witnesses
- File a verified petition in the court where husband resides, seeking perpetuation of testimony
How do you serve an individual in Virginia (specifically)?
Based on the descending order rule (can only move down the list if former methods are impossible):
-
Personal service (i.e., directly to D)
- Must be tried
- Note: this is different than Federal court
- Must be tried
-
Substituted service
- Must be served:
- At D’s usual abode
- On member of D’s family who is both:
- At least 16 years old
- Not a guest or temporary sojourner
- By explaining the purpose of the service
- Must be served:
-
Posted service
- Must:
- Post a copy of process on D’s front door
-
Mail a copy of process to D
- At least 10 days before taking default judgment
- Explain to D that P may seek default judgment 10 days later (only in Circuit Court)
- Certify to the clerk that mailing took place
- Must:
In Circuit Court, how does D respond to P’s complaint?
A number of options:
- Motion for bill of particulars__
- Motion objecting to venue__
- Special appearance to challenge personal jurisdiction
- Motion to quash process__
- Demurrer__
- Special plea__
- Answer__
What are the statute of limitations for:
- Personal injuries
- Nonphysical personal torts
- Defamation
- Property damage
- Property damages for sales under UCC
- Fraud
- Wrongful death
- Written contracts
- Unwritten contracts
- Unlawful detainer
- Personal injuries - 2 years
- Nonphysical personal torts - 2 years
- Defamation - 1 year
- Property damage - 5 years
- Property damages for sales under UCC - 4 years
- Fraud - 2 years
- Wrongful death - 2 years from death
- Written contracts - 5 years
- Unwritten contracts - 3 years
- Unlawful detainer - 3 years from detention
When is D required to raise a defense in a sworn pleading or affidavit?
Defenses based on:
- Lack of genuineness of handwriting
- Lack of corporate or partnership agency status
- Lack of ownership or operation of property/instrument
How many jurors have to agree in order to get a verdict?
It must be unanimous, unless:
- Parties agree otherwise
- It is a three person jury (in which case 2 votes is fine)
For purposes of determining the 21-day period, what do you count?
All days, including weekends and holidays
What if a minor is sued without a guardian ad litem?
Any judgment is invalid, unless both:
- Minor represented by a lawyer who entered an appearance for her
- Suit is not to encumber minor’s land
What is common law “recoupment”?
When D pleads equitable defenses in legal claims on contracts (e.g., failure of consideration, fraud in the inducement, breach of warranty, etc.)
Does a court have to grant a request for an extension of time for filing?
No, so long as it considers:
- Good faith of moving party
- Prejudice to other party
- Extenuating circumstances
- Merit of the proposed document
What is the equivalent of the RJMOL in Virginia?
What is the difference?
Motion to set aside verdict as contrary to evidence
The party does not have to have moved to strike the evidence first (different from Federal court)
If there are two defendants who live in different places, what venue is proper?
If venue is okay for one defendant, that venue is okay for all defendants
Unless one defendant is entitled to Category A venue, in which case she can object and the case will be transferred there
In an action for detinue, what should P do from the outset?
Move for pretrial seizure by:
- Verified petition
- Describing property and showing rights to it
- Stating risk that property will be damaged, hidden, or removed
- Posting bond that is twice the value of the property
What are the different methods of partition of realty?
- Division in kind
- Divide up property among interested parties
- Partition by allotment
- Give land to one party and have them pay off others
- Partition by sale
- Co-owners split proceeds of sale
- Only allowed if other methods not feasible
What is the difference between the circuirt courts and the GDCs in Virginia?
Circuit courts:
- Have general SMJ
GDCs:
- Basically restricted to hearing legal claims only
- Courts not of record
- No formal pleadings
- No discovery
- No jury
How does the class action work in Virginia?
It doesn’t, there is no such thing in Virginia
How do you determine venue in Virginia?
- Is there a forum selection clause?
- Must be fair and reasonable
- Does the case fall into Category A venue?
- Local actions (involving land)
- Venue is where land or any part thereof lies
-
Will actions
- Venue is where will was subject to probate
-
Writ actions (i.e., mandamus, prohibition, certiorari)
- Venue is where proceeding to which writ relates is located
-
Injunctions
- Venue is where subject proceeding/judgment is located
- Local actions (involving land)
- Does the case fall into Category B venue?
- Whatever does not fall into Category A
- Venue may be:
- Where D resides
- Where D has principal place of employment
- Where cause of action arose
- Where D has registered office/agent
- Where D regularly conducts business
- Where property subject to litigation is located
- Where fiduciary subject to litigation is qualified
Can the GDC attach real property?
No. That must go to the Circuit Court
When is D required to file her answer?
Within 21 days after the court has overruled all demurrers, pleas, and motions
What is the motion to strike the evidence?
Functional equivalent of a JMOL
How does D raise a statute of limitations defense?
Special plea
When P files a complaint, that tolls the statute of limitations for what?
- P’s claim
- Counterclaims arising from same T/O
- Crossclaims arising from same T/O
What happens if D responds without raising a special plea?
It is waived
How is service performed on Virginia Corporations?
What about non-Virginia corporations?
Virginia Corporations
- P personally serves either:
- The corporation’s registered agent
- Any officer of the corporation
- Any director of the corporation
- State Corporation Commission
Non-Virginia Corporations
- If registered to do business in Virginia, same as above
- Otherwise, P either:
-
Personally serves either:
- The corporation’s registered agent in Virginia
- Any officer of the corporation in Virginia
- Any director of the corporation in Virginia
- Serves the following with the State Corporation Commission:
- 2 copies of process
- Affidavit of corporation’s last known address
-
Personally serves either:
Under the Virginia Code, who is subject to general personal jurisdiction?
Defendants who are either:
- Served with process instate
- Residents (domiciled) instate
In Circuit Court, how does D challenge personal jurisdiction?
Must make a special appearance
Must be raised first and by itself, or waived (that would be called a general appearance)
What would D files to argue lack of SMJ?
Demurrer
What if a demurrer says that P’s pleading is “insufficient as a matter of law” or “fails to state facts showing P is entitled to relief”?
This is not good enough - P must specifically state why the complaint is not good enough
If a document that should be annexed to a pleading is not, what can the receiving party do?
Make a motion craving oyer, which requires the other party to produce the document, and then it is annexed
What is a special plea?
This is Virginia’s version of the affirmative defense
If P takes a nonsuit and wants to refile, when can he do so?
Within 60 months or SOL period, whichever is longer
How does P start the case in GDC?
Either:
- Obtain a civil warrant (i.e., printed form) from the clerk of court and fill in the blanks (i.e., name of parties and nature of grievance)
- Draft a tailored motion for judgment
What is a partial final judgment and when is it appealable?
When the court enters judgment regarding one party but not the other (i.e., summary judgment in favor of D1 but not D2)
The loser on the motion (D2) may appeal if:
- Trial court enters partial final judgment
- Interests involved are separate and distinct from those remaining
- Results of appeal will not effect remaining decision
- Results of remaining decision will not affect disposition of final partial judgment
What happens to the statute of limitations in a case against an unknown owner or operator of a motor vehicle?
Statute of limitations is tolled for 3 years so P can identify D
If D has actual knowledge of the action within the limitations period, P can amend to name him specifically after period
How do you appeal from the GDC to the Circuit Court?
- File written notice of appeal
- With the clerk of GDC
- Within 10 days of judgment
- Post bond and pay writ tax in GDC
- Within 30 days of judgment
- Within 10 days of judgment (if unlawful detainer)
In Virginia, when can you amend the pleadings?
Only if you get leave to amend
This is not the case in Federal court
If all defendants are nonresidents (i.e., out of state), where can P lay venue (in addition to where action arose)?
Where P resides in Virginia
(But if one D is a Virginia resident, venue must be proper to her)
What if there are two defendants, but the case is voluntarily dismissed against one defendant, and that defendant provided the basis for venue?
The other defnedant can move to object to venue within 10 days of dismissal
The court will transfer venue if that defendant shows the other defendant was joined improperly or to create venue
In what name does a minor bring suit?
In what name is a minor suied?
She should sue in her own name, by John Doe, her next friend
She should be sued in her own name, but P should ask the court to appoint a guardian ad litem
What would D file to argue misjoinder of claims?
Demurrer
What is the procedure for jury selection?
7 or 5 person jury
- Begins with number of jurors to be selected plus 6
- After voire dire, parties exercise strikes for favor
- If one is stricken, another is brought on
- Each side uses their 3 preemptory challenges
3 person jury
- Each side chooses one
- The two jurors choose the third
What would D file to argue failure to state a cause of action?
Demurrer
If Case 2 is in a different court system (i.e., federal or state) from Case 1, which system’s laws apply regarding res judicata or collateral estoppel?
Case 1
What is a quotient verdict?
Is it allowed?
Each juror sets his own damages and then they divide by the number of jurors
It is improper because they have to reach a number as a group
What is the warrant?
What is the notice of motion for judgment?
What are the restrictions on them?
Warrant - printed form starting case in GDC that is served by sheriff or deputy
Notice of motion for judgment - goes along with the tailored motion for judgment drafted by P in GDC
The return date (i.e., when D must appear in court) cannot:
- Be more than 60 days from service
- Be less than 5 days from service
What constitutes “good cause” to refuse transfer based on improper venue?
A lawyer’s failure to press the issue of improper venue, even if a motion objecting to venue was properly filed
What is the rule regarding discovery in Circuit Court?
Generally mirrors federal rules, except:
Distinctions:
- No mandatory disclosures
- 21 days rather than 30 days for deadlines
- 30 is the max for interrogatories
- No limit on number of depositions
- No requests for production against non-parties
What is different in Virginia regarding counterclaims?
- They are never compulsory
- Don’t need to be transactionally related to original claim
- Must be against P or all Ps jointly
When can a party seek a rehearing in GDC?
No later than 30 days after judgment, and court must rule no later than 45 days after judgment
When can you appeal a Circuit Court decision to the Court of Appeals?
Generally only in domestic relations cases and in some administrative matters
Otherwise, seek appeal by Supreme Court, which is always discretionary
How does P start the case in Circuit Court?
What does this need to contain, what can it contain, and what does it not need to contain?
- File either a:
- Complaint
- Petition (if suing for a writ)
- Must contain:
- Name of court
- Names or parties
- Addresses of parties
- Signature of lawyer
- Statement of facts (in numbered paragraphs)
- May contain:
-
Prayer for relief, including:
- Ad damnun clause (if money damages)
- Separate identification of punitive damages
-
Prayer for relief, including:
- Does not need to contain:
- Allegation of jurisdiction
- Allegation of venue
Who can serve process in Virginia?
Either:
- Adult civilian who is not interested in case
- Sheriff
- Deputy
When can a P plead inconsistent allegations?
P can plead alternative facts to alternative parties, if they arise from the same transaction or occurrence
How does a lawyer properly object to venue?
Circuit Court
- By filing a motion within 21 days after receving process
- Note: the motion must be filed, not merely mailed
General District Court
- By objecting on or before the day of trial
In Circuit Court, what are the requirements for a motion objecting to venue?
Must state:
- Why venue was improper
- What venue is proper
Must be timely (i.e., within 21 days of service)
If D is in Virginia to be a witness in a civil case, can she be served for another civil case?
If the other case is a Virginia case, yes (i.e., no immunity)
If the other case is a Federal case, no (i.e., immunity)
Virginia is different than the Federal rules here
But immunity does apply if D is in Virginia for to appear in:
- Grand jury proceeding
- Criminal case
If D appeals from GDC to the Circuit Court, what can P do in response?
Can P do this if P appeals from GDC to the Circuit Court?
Move to amend his claim to over $25,000 (because the GDC would not have had jurisdiction over this amount before)
It is not clear whether P could do this if he appeals
What is “the return” or “proof of service”
A report to the court by an officer who served process, saying what he did to effect service
A civilian can do this too, but it is prima facie evidence of service if an officer does it, not so with a civilian
Must be filed within 72 hours of service
What are the sanctions if an attorney certificate is wrong?
The party can be liable for attorney’s fees incurred because of the improper document
What is the one motion for which time cannot be extended by the court?
Venue (i.e., the judge cannot extend the time for filing a motion to transfer venue)
BUT you can simply ask for an extension of time to file a responsible pleading (i.e., just not refer to venue by name)
How does a convict sue and be sued while in custody?
Should be done through a committee
If convict is suing, he waives committee if he does so without one
What are the different types of writs?
What venue is appropriate in these cases?
Writ of:
- Mandamus
- E.g., force government official to fulfill duties
- Prohibition
- E.g., stop lower court from exercising jurisdiction
- Certiorari
- E.g., review zoning decision
Venue is appropriate under Category A where the proceeding to which the writ relates is located
Can the GDC hear:
- Actions at law in tort
- Actions at law in contract
- Actions in detinue
Yes, but only if:
- Amount in controversy is $25,000 or less
What is the rule regarding discovery in GDC?
There is no discovery
Parties can compel witnesses to attend trial through:
- Subpoena
- Subpoena duces tecum
What is different in Virginia regarding default?
It is entered automatically
What is the curing statute?
Does it always apply?
Definition
- It says that even if service was improper, if D actually (i.e., in person) and timely (i.e., before D would be in default) receives service, it is okay
Application
- Does not apply in divorce and annulment cases
If D’s motion objecting to venue is defective (e.g., it did not state what venue was proper), what can the judge do?
He can still transfer
If this arises, just explain why the motion was defective
If a claimant won Case 1, what is res judicata called?
What is the claimant lost?
Merger
Bar
Over what claims does the GDC have exclusive subject matter jurisdiction?
- Monetary claims of $4,500 or less
- Claims to personal property of $4,500 or less
How is a Commissioner used in equity cases?
The Commissioner assists the judge in deciding the case
The judge sends matters to the Commissioner by a decree of reference, telling him what to do
Commissioners can only be used if either:
- All parties agree
- Court finds good cause
Can the GDC issue distress warrants? What are these?
These give the creditor rights to seize property
The GDC can issue them regardless of amount
What causes of action can be plead in the same complaint?
Any claims that arise from the same transaction or occurrence
Can the GDC hear:
- Claims for rent due (i.e., distress claims)
- Claims to oust D from real property
- Disputes over leases
Yes, and there is no monetary ceiling
What is the official announcement by the court of the decision in the case:
- On legal causes of action
- On equitable causes of action
Legal - judgment
Equitable - decree
When can you appeal from the GDC to Circuit Court?
If the amount involved is more than $50, there is an absolute right to appeal
When can P take a nonsuit without prejudice?
Only once, and only if the following is not true:
- All considered at time of motion:
- Jury retired from bar
- Non-jury case submitted to court for decision
- Motion to strike evidence granted
- Demurrer or special plea is both:
- Fully argued
- Awaiting decision
In Virginia, what is different about impeaching a verdict for impropriety by a juror?
In Federal court you can’t really ask jurors about anything
In Virginia, you can ask jurors about misconduct but not about their subjective deliberations process
How is service performed under Virginia’s long-arm statute?
First alternative:
- P executes and files an affidavit setting forth both:
- That D is a non-resident or cannot be found
- D’s last known address
- P gives process and a copy of the affidavit to the Secretary of the Commonwealth
- The Secretary:
- Sends process to D by certified mail
- Sends a certificate of mailing to the court
- Service is complete once the clerk of court receives the certificate
Second alternative:
- P arranges for personal service out of state by someone authorized to serve process there
- Note: P obviously must have a basis for personal jurisdiction under the long-arm
If in response to a request for admission, D refuses to respond, what is the result?
Because D failed to deny, it is treated as an admission
“If you don’t deny you will surely fry”
Under the Virginia Code, who is subject to specific personal jurisdiction?
Under Virginia’s long-arm statute, the claim must arise from the defendant doing/having one of the following:
- Tortious injury instate by act or omission instate
-
Tortious injury instate by act or omission out of state
- D must either:
- Regularly do or solicit business instate
- Derive substantial revenue from goods instate
- D must either:
- Contracts to supply services or things in Virginia
- Having an interest in, using, or possessing realty instate
- Any business transaction instate
-
Injury instate by breach of warranty from sale out of state
- D must either:
- Have reasonably foreseen effect instate
- Regularly do or solicit business instate
- Derive substantial revenue from goods instate
- D must either:
- Matrimonial domicile instate (domestic relations cases)
Under Virginia’s non-resident motorist act (NRMA), the claim must arise from:
- Motor vehicle accident instate
- But also falls under long-arm #1 above
What is different in Virginia about enforcement of arbitration agreements?
- Must be done in Circuit Court
- Party can petition court to confirm arbitration award into a judgment
- Party can petition court to vacate arbitration award on limit grounds:
- Fraud
- Corruption
- Undue influence
What is the basic idea behind subject matter jurisdiction in Virginia?
State courts can hear any case except those for which there is exclusive federal question jurisdiction (e.g., federal antitrust, patent infringement, bankruptcy)
To argue that service was improper, what motion would D make?
Motion to quash process
Can the GDC attach property?
Yes, but only if the value is $25,000 or less
If D filed a counterclaim or crossclaim, can P take a nonsuit?
Only if:
- D agrees
- D’s claim can be adjudicated independently
When does a party have to demand a jury?
If a party doesn’t do so, what happens?
Within 10 days after service of last pleading raising jury-triable issues
If not demanded, bench trial (unless judge orders jury)
When might the statute of limitations start to run later than date of injury or breach?
- Fraud, mistake, or undue influence (discovery)
- Malicious prosecution (end of underlying case)
- Contribution (when one pays more than fair share)
- Medical malpractice (end of full course of treatment)
What is different in Virginia medical malpractice cases?
Within 30 days after responsive pleading, either party can request a medical malpractice panel to decide the case
- Parties can accept the decsion or resume the case
- Decision will be admissible evidence at trial if:
- Includes standard of care applied
- In discovery parties can as panel about deliberation
What is a motion for bill of particulars?
- Asks other side to amplify pleading
- Must be made promptly
What happens if P joins unrelated claims?
This is misjoinder, and it is unique to Virginia
When must an impleader action be filed?
Circuit Court
- 21 days after service
GDC
- Earlier of:
- 10 days after service
- Trial date
If a demurrer is sustained, what does a court do?
Sustains without prejudice and sets a time for amendment
What is intervention?
Is it allowed in GDC?
Circuit Courts?
When a third party wants to join a pending case
Allowed in Circuit Court but not GDC
Always permissive, never mandatory
In GDC, can D ever be required to file a responsive pleading?
Only if P moves for grounds of defense, and the court grants it
In addition to common law recoupment, when can D raise equitable defenses in a legal contract action?
Under Virginia Code, but the court cannot:
- Reform the contract
- Rescind the contract
- Compel the conveyance of land
What is different in Virginia regarding summary judgment?
Not granted if:
- Conflict in pleadings
- Based on affidavits
- Based on depositions (unless all parties agree)
- Divorce or annulment case
When can a tortfeasor seek contribution from joint torteasors?
So long as:
- Tort is negligence
- Does not involve moral turpitude
-
P could have recovered against the tortfeasor
- E.g., P cannot sue employer under worker’s compensation
Can a party who files a complaint recover more than he seeks in the complaint:
In Federal court?
In Virginia court?
Federal
- Yes (unless default judgment)
Virginia
- No
If P is suing partners in the partnership, who must be named in the complaint?
Either:
- Individual names doing business under firm name
- Firm name
You probably want both so you can have an alternative source for collecting judgment
How do you determine which state court has subject matter jurisdiction in Virginia?
- Circuit court
- May hear any civil action, except actions for:
- Monetary claims of $4,500 or less
- Claims to personal property of $4,500 or less
- May hear any civil action, except actions for:
- General district court (GDC)
- May hear certain limited claims (see next card)
- Small claims court
- Part of the GDC
- Concurrent jurisdiction over claims of $5,000 or less
Can the GDC grant injunctions?
Generally, no.
Exception: to enforce state FOIA
When should D file a demurrer with respect to when she files an answer?
Demurrer must be filed before the answer
In a wrongful death action in Virginia:
- Who brings the case
- Who are the beneficiaries
- What damages can be recovered
- Brought by decedent’s executor
- Beneficiaries:
- SS, children, and grandchildren
- If no children or grandchildren,
- SS & parents of decedent
- If no SS, children, or grandchildren,
- Parents & siblings of decedent
- If no beneficiaries in these groups,
- Decedent’s intestate takers
- If no children or grandchildren,
- SS, children, and grandchildren
- Damages:
- Can be lumped
- Sorrow, anguish, and lost companionship
- Services and income provided by decedent
- Must be separately stated
- Medical and funeral expenses
- Punitive damages for wonton or willful misconduct
- Can be lumped
On the bar exam, how is the use of Commissioners often raised?
In cases involving the partition of land (e.g., division in kind, etc.)
When can venue be transferred?
- When venue was improper
- When either party makes a motion for a transfer, if:
- There is good cause to transfer - i.e., the transferee venue is the center of gravity (i.e., more convenient)
What is the major exception in Virginia for the “same T/O” requirement with regard to res judicata and collateral estoppel?
When property damage and personal injury arise from the same T/O they are different causes of action
What does it mean to toll the statue of limitations?
What will toll the statute of limitaitons?
Stop it from running
Sources of tolling:
- Minority
- Being of unsound mind
What is different in Virginia regarding necessary and indispensable parties?
Same as in Federal courts, except under Virginia Code:
- Necessary parties include parties “as the ends of justice require”
- There is no such thing as indispensable parties in Virginia
What should D do if she wants to respond to P’s complaint based on new information/facts?
File a motion craving oyer
DO NOT file a demurrer (these cannot be based on new facts)
In which cases is discovery narrower in Virginia?
- Divorce
- Habeas corpus
- Eminent domain
If D’s response is somehow inadequate, what does P file?
A motion to strike the pleading
Not a demurrer - that is only in response to causes of action
What is an attorney certificate?
It is the Virginia version of FRCP 11
Attorney (or pro se party) must sign all pleadings, motions, and other papers, certifying that:
- She has read it
- To the best of her knowledge, information, and belief, it is grounded in fact and law
- It is not for harassment or delay
Does minority toll the statute of limitations in medical malpractice cases?
Not if the child is 8 or older - 2 year SOL applies
If child is younger than 8, can sue until 10 years old
If venue is improper, and an objection is timely filed, what will the court do?
Transfer to a proper venue unless it finds good cause to keep the case
Note: the court will not dismiss
What is different in Virginia regarding crossclaims?
Historically, needed to be done with a formal summons; probably not the case anymore but no clear case law
What factors are relevant to determining whether a court has good cause to transfer venue?
- Agreement of the parties
- Avoiding substantial inconvenience to parties/witnesses
- Delay in seeking transfer
Can the GDC hear interpleader cases?
Yes, but only if either:
- Stake is worth $25,000 or less
- Earnest money deposit in a land sales contract
(And no injunction is available)
If a defense is raised that is required to be in an affidavit, but it is not, what should P do?
Make a motion to strike the pleading within 7 days after filed
Otherwise, the objection is waived
When does the statute of limitations start to run for a nuisance?
If there is a single nuisance, when it starts
If there is an intermitten nuisance, maybe each time nuisance starts up again
For subpoenas, what is the standard for information requested:
- In Federal court
- In Virginia
Federal court
- Must be relevant to a claim or defense
Virginia
- Must be relevant to subject matter of pending action
Relevant = reasonably calculated to lead to admissible evidence
What types of things can P allege generally in a complaint?
- Negligence
- Proximate cause
But there must be facts to support the actual elements of the cause of action for negligence (e.g., duty, etc.)
Can the amount of a counterclaim exceed the amount of P’s original claim?
Yes, but if in GDC, watch out for the jurisdictional limit (i.e., $25K)
When can a D implead after the statute of limitations?
If P files within 30 days of end of SOL, D can implead within 60 days after SOL
If a party files within the statute of limitations, but then takes a nonsuit after the statute has run, can he refile?
Yes. He can refile within the later of:
- 6 months
- End of statute of limitations
What is the bill of review?
Bill in equity cases that trumps 21 day period.
Party can seek review of final decree for up to 6 months after entry
How do you serve process in Virginia (basically)?
Serve D with both:
- Summons
- Copy of complaint
If the court enters nonsuit, is it appealable if:
- D does not object
- D objects
No objection
- No appeal (it is without prejudice)
Objection
- Appeal (as to whether nonsuit should have been granted)
What do special statutes in Virginia do to help vendors collect on contracts?
If P files with his complaint (in Circuit Court) or civil warrant/motion for judgment (in GDC) an affidavit stating:
- Amount of claim
- Amount is justly due
- Date from which he seeks interest
And D does not plead under oath that P is not entitled to the money, then judgment entered for P
If P’s executor sues for wrongful dead, and D dies before judgment, what is the effect on damages?
Punitive damages not allowed
In an action for detinue, what can D do if P moves for pretrial seizure?
Get the property back in the meantime by:
- Posting bond of two times the value of the property
- Giving P notice
Is a judgment or decree entitled to res judicata or collateral estoppel effect if it it has been appealed, or if the time for appeal has not ended?
Virginia - no
Federal - yes
