VA Civ Pro terms Flashcards
What is a demurrer?
A demurrer challenges sufficiency of the form, style, allegations, or appropriateness of an aggressive pleading; VA version of a 12(b)(6) motion.
What is a motion to strike a pleading?
A motion to strike a pleading challenges sufficiency of a responsive pleading.
What is a motion for a bill of particulars?
A motion for a bill of particulars serves as a responsive pleading and requests the court to order the other party to provide factual details that form the basis of his claim.
What is a motion craving oyer?
A motion craving oyer seeks a court order compelling P to produce essential document mentioned in, but not attached to, the complaint
What is a lis pendens?
A lis pendens is a pending suit. A memorandum of lis pendens is filed in the appropriate circuit court clerk’s office to give innocent purchasers notice that the filing party seeks to establish an interest in the property described in the memorandum. The lis pendens cannot be filed until and unless the action on which the lis pendens is based seeks to establish an interest by the filing party in the real property described in the lis pendens.
What is a laches?
Laches is an affirmative defense available if P waited too long to bring the claim so it is unfair to disadvantage D; only applies to equitable claims that lack a statute of limitations; does not apply to claims by VA or local governments
What is ejectment?
An ejectment is a remedy at law determining title to land.
What is partition?
A partition is an equitable proceeding where one owner can seek partition to divide fairly (if convenient) or sell and divide proceeds if two or more co-owners disagree about use of property.
What is a detainer?
An unlawful detainer is a remedy at law determining right to possession (not title) of real property; here, the landlord uses this action to dispossess tenant in breach of a lease and can recover rent, damages for wrongful detention, and eviction.
What is a bill of review?
A common-law proceeding in an equitable cause that seeks a review on narrow grounds
of a final order in an equitable proceeding. It can be brought to correct errors of law that are apparent on the face of the record and in limited circumstances for newly discovered evidence. The Bill of Review must be filed within six months of the final order against which it is brought.
What is attachment?
A civil judicial process that results in the issuance of a writ of attachment by a court. The court orders the sheriff to levy upon property of a debtor-defendant in order to hold the property for satisfaction of a judgment if and when obtained by the creditor-plaintiff. The attachment is in the nature of a pre-trial seizure.
What is a detinue?
A detinue is an action at law to recover specific personal property unlawfully withheld from P (or its monetary value) and damages.
What is distress?
Distress is an in rem law claim by a landlord for recovery of rent by proceeding against the tenant’s tangible personal property
What is a writ of fieri facias?
A writ issued by the clerk of court in which a judgment was awarded. The writ orders the sheriff to levy on personal property, which is then subject to sale in order to satisfy the judgment. This writ is commonly known as a writ of execution.
What is remittur?
If the court determines that a jury award is excessive, the court may either (i) grant a new trial, or (ii) put the parties on terms to accept less than the award, and if either party does not do so, the court can then grant a new trial. Reducing an award in this manner is called a “remittitur.”
