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Virginia Civil Procedure- > Pleadings in Circuit Court > Flashcards

Pleadings in Circuit Court Flashcards

1
Q

True or False: VA has abolished the distinction between cases at law and equity.

A

TRUE.

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2
Q

Now all cases are called ______________ , regardless of whether they involve legal or equitable causes of action.

A

Civil actions.

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3
Q

How does P initiate her lawsuit in Circuit Court?

A

By filing a complaint.

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4
Q

What does P file instead of a complaint if she’s suing for mandamus, prohibition, or certiorari?

A

A petition.

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5
Q

What must P include in her pleading?

A

1) The name of the court,
2) names and addresses of the parties,
3) signature of the lawyer,
4) statement of facts in numbered paragraphs
5) statement of relief desired (prayer)

The pleading must clearly inform D of the true nature of P’s claim.

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6
Q

Must P allege jurisdiction?

A

No.

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7
Q

Must P allege venue?

A

No.

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8
Q

What is a “prayer?”

A

Statement of relief desired; this must be included in P’s complaint.

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9
Q

A statement of relief for damages is called what?

A

Ad damnum clause.

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10
Q

What must be identified separately in the prayer for relief?

A

Punitive damages.

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11
Q

May P join (1) breach of contract, (2) breach of warranty, and (3) negligence claims in a single case?

A

Yes, P may join claims arising from the same transaction or occurrence.

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12
Q

What is it called if P joins unrelated claims?

A

Misjoinder of claims; this is NOT allowed.

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13
Q

After being served with P’s complaint, how soon must D respond?

A

21 days.

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14
Q

What are the possible ways in which D can respond to P’s complaint?

A

1) Motion for bill of particulars
2) Motion objecting to venue (must be filed w/in 21 days of SOP unless court extends deadline to file responsive pleading)
3) Make a special appearance (D can do this if P fails to serve process w/in 1 year of filing the complaint).
4) Motion to dismiss for lack of PJ (this is also a special appearance)
5) Motion to Quash Process
6) Demurrer
7) Special Plea/ “Plea in Bar of Recovery”
8) Answer

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15
Q

What happens if D raises PJ at the same time (or after) engaging the merits?

A

It’s waived.

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16
Q

What is a general appearance?

A

Any conduct that engages the merits of the case (including a demurrer, special plea, counterclaim, cross-claim, third-party claim, and conducting discovery).

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17
Q

Can D raise PJ at the same time as a motion objecting to venue and for transfer?

A

Yes.

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18
Q

To argue that service of process was improper, what motion does D make?

A

Motion to quash process.

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19
Q

Is it OK for D to file a motion to quash process simultaneously with a pleading responding to the merits?

A

Yes, it’s okay to file before or with a response to the merits.

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20
Q

What’s a demurrer?

A

A pleading D files stating that P has failed to state a cause of action/ facts upon which relief can be granted.

21
Q

What can D challenge with a demurrer?

A

Failure to state a cause of action, misjoinder of claims, and lack of subject matter jurisdiction.

22
Q

What must the demurrer say?

A

It must specifically state why P’s pleading is insufficient. It can’t just say “P’s pleading is insufficient as a matter of law” or “fails to state facts showing that P is entitled to relief.”

23
Q

May the demurrer allege new facts?

A

NO.

24
Q

If D thinks case should be arbitrated because of a clause in the contract, but P failed in her complaint to mention the arbitration clause or annex the contract, what should D do?

A

Make a motion craving oyer.

25
Q

Motions are either granted or denied. Demurrers are either ___________ or ______________.

A

Sustained; overruled.

26
Q

If a demurrer is sustained, what does the court usually do?

A

Sustain without prejudice and set a time for an amendment.

27
Q

D can file a demurrer ____________ her answer or ______________.

A

Before; at the same time.

28
Q

What happens if D files her answer before she demurs?

A

She can’t demur without court permission.

29
Q

What is a special plea or “plea in bar of recovery?”

A

Used to raise affirmative defenses, such as Statute of Limitations or res judicata.

30
Q

How may a special plea be raised?

A

Either separately as a motion to dismiss, or stated like affirmative defenses in the answer.

31
Q

What does D put in his answer?

A

1) Responses to allegations of the complaint (admit, deny, or state lack of knowledge) in numbered paragraphs
2) Affirmative defenses (special pleas)

32
Q

What’s a general denial?

A

A single sentence denying all the allegations of the complaint. Generally not allowed by court rule.

33
Q

After the court has overruled all demurrers, pleas, and motions, D will be ordered to file her answer within ______ days or as the court directs.

A

21.

34
Q

With legal causes of action on contracts, can D plead equitable defenses such as failure of consideration, fraud in the inducement, breach of warranty, or unconscionability?

A

Yes.

35
Q

What is the effect of D pleading equitable defenses?

A

They diminish P’s claim (common law recoupment).

36
Q

True or False: D can raise equitable defenses in a damages action on a contract and can recover damages for them, even in excess of P’s claim.

A

TRUE.

37
Q

When D is asserting equitable defenses to legal actions, what can the court not order?

A

Reform or rescind a contract or compel the conveyance of land.

38
Q

Some defenses must be raised in a sworn pleading or affadavit (under oath). The pleadings that must be sworn include:

A

Lack of genuineness of handwriting.
Lack of corporate or partnership or agency status (including employment relationship)
Lack of ownership or operation of property or instrumentality.

39
Q

VA has special statutes to help vendors collect on contracts. In an action on a contract seeking payment of money, P can file with his complaint (or civil warrant or motion for judgment in GDC) an affadavit stating:

A

1) the amount of his claim
2) that the amount is justly due
3) the date from which he seeks interest.

40
Q

After being served with the process and affadavit together, what happens if D fails to plead under oath that P is not entitled to the money? What happens if D does plead that P isn’t entitled to the money?

A

If D doesn’t plead: judgment is entered for P.
If D does plead: P is entitled to a continuance if she moves for it.

41
Q

After D responds, what must P do?

A

Nothing; except if D pleads new matter in his defensive response and expressly requests that P respond to the new matter.

42
Q

If D pleads a new matter in his response and expressly requests that P respond, how many days does P have to do so?

A

21 days. P responds in a reply.

43
Q

What can P do if D’s answer is somehow legally insufficient?

A

File a motion to strike the pleadings.

44
Q

In federal court, there is a right to amend pleadings. In Virginia, a party must _______________.

A

Get leave to amend.

45
Q

If P files suit against D, then without court permission, P files an “amended complaint” which D answers, what is the effect of the “amended complaint” and D’s answer to it?

A

They have no legal effect; they are nullities.

46
Q

True or False: Amendments are allowed liberally to further the ends of justice.

A

TRUE.

47
Q

What will the court consider in determining whether to allow an amendment?

A

Whether it would unduly delay proceedings or prejudice a party, or whether the amendment would be futile. The trial court decision will be upheld unless it’s an abuse of discretion.

48
Q

Under what circumstances is “relation back” appropriate?

A

If the amended complaint concerns the same transaction or occurrence as the original, the party seeking amendment has been reasonably diligent, and the other party isn’t substantially prejudiced.

49
Q

For “relation back” to apply when P is adding a new D, the new D must:

A

Have had notice within the limitations period of the action and knew or should have known that but for a mistake concerning identity, he would have been named originally.

Virginia Civil Procedure- (6 decks)

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