Flashcards in Quick VA Civ Pro Deck (175):
VA SOL - Adverse Possession of RP
VA SOL - enforcing deed of truse or mortgage
VA SOL - Prescriptive Easement
VA SOL - AP of PP
VA SOL - Personal Injury
VA SOL - Nonphysical personal tort not involving fraud, K or property damage
VA SoL - Defamation
VA SoL - Fraud
VA SoL - Property damage
VA SoL - Wrongful Death
VA SoL - Written Ks
VA SoL - non written Ks
VA SoL - Claims under UCC
VA SoL - Ks governed by laws of another state
shorter of VA or foreign law
VA SoL - Contribution among tortfeasors
3ys from payment (can be joined as TP D even after SoL has run in Ps suit)
VA SoL - Unlawful entry/detainer
VA SoL - Settling accounts between partners or between merchants
5ys from cessation of dealing (winding up - not from date of dissolution
VA SoL - enforcing CC judgment
20ys, can renew for 20 more
VA SoL - enforcing GDC judgement
10ys, but if docket in CC treat like CC judgement
VA SoL - Damages from improvements to realty
5ys from end of work
VA SoL - Virginia Tort Claims Act
must give written notice within 1yr of injury; SoL 18 months after giving notice (can sue VA; NOT local gov)
VA SoL - money clains against commonwealth
must present claim in writing to the "comptroller or auhtorized person" within 5 yrs; SoL 3 yrs after dissalowance
VA SoL - Workers compensation
VA SoL - personal actions for which no other period is specified
VA Time to respond to complaint
21 days after SOP - otherwise default
Always permissive, no SOP, within 21 days, prevents removal to fed court,
VA Cat A venue
1) Land 2) divorce/annulment 3) will contests 4) injunctions 5)suing commonwealth (where officer has office
VA Jury selection
3 preemptory strikes (articulated reason, racially neutral), unlimited for cause
VA # of jurors
5 from a pool of 11 for claims up to 25k. 7 from a pool of 13 for claims over 25k
VA motion craving oyer
force a party to place documents mentioned in the pleadings, but not attached thereto, within the court record
VA jury demand
within 10 days of last pleading, otherwise waived
30 max (25 fed) - must be anwsered within 21 days if to P - 28 days if to D
VA punitive damages
available only for WILLFULL OR WANTON CONDUCT, or such RECKLESSNESS as EVINCES A CONSCiOUS DISREGARD for the SAFETY of OTHERS - 350K MAX requires award of comp damages)
VA GDC motion to rehear
must be made within 30 days of judgment/court must rule within 45 days of judgement
VA CC Rule 1:1
court retains jdx over decree for 21 days after entry of judgement (when judge signs final order). 21 days to suspend, modify or vacate.
VA circuit court motion for new trial
within 21 days: Misconduct, after discovered evidence, accident or surpries (w/material affect, excessive or inadequate damages (shocks the consciense additur remittitur)
VA CC after final judgement - clerical mistakes
court may correct anytime (after 21 days)
VA CC after final judgement -void judgment or proof of accord & satisfaction
court may set aside anytime (after 21 days)
VA CC after final judgement -failure to notify counsel (or unrepresented party)of final order
court has 60 days to vacate, modify or suspent (if D not in default and innocently not notified of final order)
VA CC after final judgement - if D served by publication
in some cases can have proceedings repopened for 2 years
VA CC after final judgement - "Bill of Review"
For equitable claims, can correct errores of law apparenc on face of record for 6 months (if newly discovered evidence must get leave of court)
VA Court of Appeals - Procedure for appeal
1) Note Appeal in trial court or COA)- within 30 days of entry of judgement; copy to opposing counsel 2) Record prepared by clerk sent to appeal court (transcript available within 60 days of final judgement) 3) petition filed within 40 days 4) if appeal denied - petition to rehear - brief in opposition due 21 days after, response due 14 days after that 5) if appeal granted - appelant's brief due 40 days, appellees 25 days after that
In VA, what are the SoL for the following:
"Catch all" period:
personal injury: 2
oral/implied Ks: 3
Written Ks: 5
property damage: 5
"Catch all" period: 2
In VA, for a standard will, how many competant witnesses are required?
How many disinterested witnesses must identify the handwriting of a holographic will?
In VA, what are the two types of bailment?
1) Gratuitous: the owner must show negligence to recover
2) compensated: the bailee is liable whether negligent or not
What is the standard of proof to prove paternity?
Clear and Convincing evidence?
How does Class Action work in VA state courts?
There is no such thing in VA
How does Intervention work in VA?
a) No RIght, always in Courts discretion
b) no time limits prescribed
c) Claim of defense in intervention must be realted to case
d) File pettion for intervention. If granted I would file a complaint and serve it formally. D's would respond normally
How to necessary and dispensable parties work in VA?
Necessary, same as in Fed court. VA allows court to order joinder of parties as the order of justice requires
When does a D in VA file 3rd party impleader complaint?
Has a right to do so not later than 21 days after he serves first responsive pleading. After that needs leave of court
GDC --within 10 days after SoP or up until trial date
In VA tortfeasor can seek contribution from joint tortfeasor if the tort is negligence and ____
includes no moral turpitude BUT cannot implead a joint tortfeasor against whom PLAINTIFF Could not recover
How do cross-claims work in VA?
1) Permissive, never compulsory
2) must be transactionally related to case
3) Can be asserted against 1 of several co-parties
4) diff from fed. historically, you have needed to serve CC w/ a summons (not clear)
5) must file CC within 21 days of SoP on him (GDC anytime before trial)
6) C-D has 21 days in which to file responsive pleading
How do counterclaims work in VA?
1) D must file wihtin 21 days of SoP (GDC anytime before trial
2) Never compulsory
3) need not be transactionally related to P's claim (broader than P's joinder rights)
4) can be against P or all Ps jointly
5) need not be served formally
6) after the counterclaim, P has 21 days to respond
7) counterclaim can exceed P's claim.
How does discovery work in GDC?
There is no discovery. BUT can compel witnesses attendance at trial through subpoena and subpoena duces tecum
What are VA Circuit Court discovery difference from Fed court?
1) no required disclosures
2) Timing - everything that is 30 days in fed court is 21 days in VA
3) max number of interoggatories=30 +subparts
4) No limit on depositions
5) max # requests for admission=30
6) Discoverability= material must be "RELEVANT to the SUBJECT MATTER of the pending action - REASONABLY CALCULATED to lead to ADMISSIBLE EVIDENCE
Mary tells that her husband Pete was hit by a car driven by Dan, and is severely injured, he is hospitalized and unconscious. Dan is a citizen of VA. The PO who investigated told Mary that there were two eyewitnesses. Both are Brazillian and intend to return home soon. What two things can Mary do to advance Pete's potential case against Dan?
FIRST: Become Pete's fiduciary and sue Da. Notice the witnesses depositions and subpoena them. Usually you need a court order to take a deposition within 21 days of filing, but not if witness is about the leave the country.
SECOND: File a verified petition in the CL unless Dan resists. Seeking perpetration of testimony. Court can order it even before trial.
What are the special causes of action in VA?
1) Wrongful Death
2) Declaratory Judgements
3) Partition of Realty
4) Action to Establish Boundaries (basically declaratory judgment, no damages)
6) UNlawful Detainer
8) Medical Malpractice
9) Enforcement of Arbitration and Awards
Who brings a wrongful death claim in VA, and who are the beneficiaries?
Decedent's Personal Rep
1) SS, Children, Grandchildren
2) If no children or grandchildren SS & Parents of Decedent
3) If no SS, no children, no grandchildren, parents & siblings of defendant
- if none in any of these group, to decedent's intestate takers
What damages can beneficiaries recover in a wrongful death in VA?
1) Sorrow, anguish & lost companionship
2) services & income privided by decedent
3) medical & funeral expenses
4) punitive damate if wanton or willful misconduct
*3&4 must be separately stated in the verdict - can't be lumped into other damages
In VA, can you recover punitive damages from a Defendant who has died?
What is a declaratory judgment (VA)
when litigant wants declaration of right in situation where there's actual controversy
Court cannot order Partition by sale IF Partition in Kind is______
How does ejectment work in VA?
CC only Cat A
P must be out of possession of realty, may also seek rents and profits in same action
How does unlawful detainer work in VA?
Basically for landlord to oust tenant and recover possession or realty. CAn also recover rent and for damage to the property. Cat A venue (Available in GDC as well, IN ANY AMOUNT)
How does detinue work in VA?
Detinue is to recover PP or its value and damages for deteniton. P must have an interest and a righ to immediate possession.
In VA, how can P get pre-trial seizure of an item right fully there Ex Parte?
A. By verified petition
1) describing the property and showing interest in it
2) risk that property will be damaged or removed
B.` Post bond twice value of property
What is the Virginia statutory basis for IN Personam JDX?
1) Served w/ process in State
2) reside in VA
What is the VA Long Arm Statute and what acts does it apply to?
Specific JDX exists over non-resident persons for something they did or an effect they caused in VA. The claim must arise from D's doing one of the following things:
1) Causes tortious IN STATE by act or omission IN STATE
2) Causes tortious IN STATE by act or omission OUT-OF-STATE
3) CONTRACTS TO SUPPLY SERVICES or THINGS in VA
4) Has an interest in, uses, or possess REALTY in VA.
5) Transacts ANY business in VA. (VA is a single transaction state)
6) Causing injury in VA by breach of warranty where sale was out of state
7) Domestic Relations
8) Separate statute: Non-Resident Motorist Act - jdx over the owner or operator of a motor vehicle involved in accident in VA (If P is injured in accident, #1 is also satisfied)
Can injunctions be granted by the GDC?
NO, except injunctions to enforce FOIA
GDC may hear actions at law in tort and contract if the Amount in Controversy is less than 25k. In what circumstances is there no monetary ceiling in the GDC?
1 - Interpleader in Earnest Money Deposit in a land sale contract
2 - Claims for rent due OR ouster
3 - distress warrants (creditors right to seize property)
How does appeal work from GDC to CC? What are the steps?
There is an absolute right to appeal a final judgment from GDC to CC if the amount involved is more than $20.
1) file written NOTICE OF APPEAL with clerk of GDC within 10 DAYS of judgement
2) POST BOND and pay writ tax in GDC within 30 days of judgement (10 day if unlawful detainer case)
*Circuit Court than hears the case de novo - GDC is a court of no record
Say Defendant appeals a judgment from GDC to CC. Now, can P seek leave to amend to increase his claim to over 25k?
OK if D appeals. (not so clear if P appeals than P amends)
What is the basic idea, and rules of Venue in VA?
First, look to see if there is a forum selection clause, VA courts will enforce if clause is FAIR AND REASONABLE
CATEGORY A VENUES
1) Land Actions - where the land or any part lies
2) Wills - where probated (or where could have been probated)
3) Writs - Mandamus (forcing officer to perform a ministerial act) - Prohibition (stopping lower court from exercising jdx) - CERITORARI (review of zoning decisions)
4) Injunctions - where proceeding is pending, or where the subject act is done
EVerything Else CAT B - where D resides, has her PP of employment, has registered office or where regularly conducts business
OR where the cause of action or any part thereof arose
In VA - When must a Motion Objecting to Venue be filed? Does a court dismiss a case if it is not timely filed?
MUST file within 21 days after SoP, unless court extends time.
However, case will be transferred if it finds GOOD CAUSE to keep the case (failure to press the issue is good cause)
In VA - Larry sues Curly who resides in County A, and Moe, who resides in County B. What is proper venue?
A or B. If venue is OK for 1 Defendant it is ok for All. (But, one D can object if entitled to Cat A venue and the case will be transferred)
IN VA - If claim against 2 Defs and 1 Def is voluntarily dismissed. If the dismissed D was the reason for the venue, assuming not otherwise appropriate to keep venue, can remaining D object to venue?
Yes, within 10 days of dismissal. Must show that D was joined improperly, or ONLY joined to create venue
IN VA - P sues D, who is a non-resident. IF ALL D's are non-residents, P may lay venue where?
Where the Plaintiff resides
In VA, when can you transfer from a proper venue?
Yes, but court must find that there's good cause. Court weighs P's choice of forum against things like agreement of parties, avoidance of substantial inconvenience to parties or witnesses, delay in party's seeking transfer.
*Decision is vested in court's discretion
* abuse of discretion exists if trial cour fails to weigh the appropriate factors
What is the basic idea of Service of Process in VA?
Serve D with " summons" and copy of the complaint.
GDC=Warrant OR Notice of Motion for Judgments
Who may serve process in VA and who may it be served upon?
*Adult Civilian + not interested in the case OR police
* VA follows desending order rule for SoP, can only move down the ladder if one of the higher forms of serivce is impossible
1) Personal = deliver service directly to D
2) Substituted Service = D's usuall abode, serve member of D's family, at least 16 not a guest
3) Posted Service= post copy of process on D's front door and wait at least 10 days before taking default judgement, mail process to D and certify to clerk that mialing took place
What is the VA curing statute?
improper service is OK so long as D actually and timely receives it. (doesn't apply to divorce and annulment cases)
If D is only in VA to be a witness in a civil case, is she immune from SoP?
NO. but would be immune in a federal case.
Immunity does exist in criminal and grand jury cases.
How does SoP work under the VA Long Arm Statute?
A) P executes and files an affidavit is setting forth that:
1) d is a nonresident or cannot be found with DD
2) D's last known address
B) P delivers process and a copy of the affidavit to sec of the commonwealth
C) Sec sends process to D by CERTIFIED MAIL (service is complete when SECRETARY DELIVERS CERTIFICATE OF MAILING TO CLERK OF COURT
P can arrange for Personal service out of state by one authorized to serve
P files suit against D one day before the SoL expires. Service is perfected by the sheriff a week later. Is P time barred?
No. Case commenced when filed, this TOLLS SoL.
BUT, P must serve process within 12 months of filing or else he cannot win judgement (unless shows due diligence). - must hold hearing to dismiss on this ground
What is a Motion Craving Oyer?
If a document that should be annexed to a pleading is not. MCO - PETITIONS THE COURT TO INCLUDE IN THE RECORD DOCUMENTS NECCESARRY TO REACH A DECISION Treated as annexed to the pleading
What are sanctions for violating attorney certificate?
you can be held liable for costs and attorneys fees
IN VA pleadings: Can you plead alternative facts to alternative parties?
Yes if they arose from the same T/O.
VA courts may extend the time in which parties are required to file pleadings and motions, except________
What must a judge consider to grant an extension?
Motions objecting to Venue, unless the court extends the time to file the responsive pleading. AND timing for party posting a bond
1) Good faith to the moving party
2) Prejudice to the other party
3) extenuating circumstances
4) Merits of proposed documents
On a GDC warrant, the return date cannot be more than____days or few than____days after SoP
What is a Bill of Particulars?
D can move for a bill of particulars if they want more details on P's case.
What can happen 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?
Court can order Summary Judgment against the party failing to file
What must a VA CC complaint contain?
name of court, names and addresses of the parties, signature of lawyer, statement of facts in numbered paragraphs, must clearly inform D of the true nature of the claim. Mus make a statement for relief (prayer).
JDX and Venue not needed
Motion Objecting to venue must state this:
1) why venue is improper
2) what venue would be proper
To challenge PJ in VA, (or to dismiss because SoP was never made) D must make a__________. PJ must be raised_______ and
first, by itself
What is a Motion to Quash Process? When must it be raised?
To argue that service was improper. Can be raised with but not after another response
What is a demurrer?
Tests SUFFICIENCY of a PLEADING that seeks AFFIRMATIVE RELIEF. Can be used to challenge the following:
- MISJOINDER of claims
-Lack of SMJdx
- FAILURE TO STATE A CAUSE OF ACTION
*Must say specifically why complaint is insufficient
*demurrers are sustained or overuled
What is a Special Plea?
similart to affirmative defenses in fed court. Must raise or risk waiver.
When does SoL clock start in VA?
from the date of injury or breach ("accrual") Even if Plaintiff is unaware.
1) Fraud, mistake, undue influence, accrues when P discovers
2) Malicious prosecution (when underlying case ends)
3) Contribution - acrrues when one pays more then his fair share
4) Special rule malpractice through continuous treatment/service
Why would P bring a case against a "fictitious defendant"
Unkown operator of of a motor vehicle. SoL will be tolled for 3 years to give the P a chance to discover the D's identity.
What is nonsuit? When does P have a right to do so?
When P decides to drop the case.
P has the right to do so once without prejudice unless any of these are true:
1) JURY id RETIRED from bar
2) NON-JURY CASE IS SUBMITTED to court for decision
3) Motion to STRICKE EVIDENCE is GRANTED
4) DAMAGES OR SPECAIL PLEA is fully argued and awaiting decision
After taking a nonsuit, if P wants to refile his claim, where must he do so
Same court unless it lacks jdx or venue OR unless good cause is shown to litigate elsewhere
Default is entered automatically in VA, when in default, what does the party waive?
How does the non-defaulting party obtain judgment in such a case?
Notice to further proceedings (but notice will be given to counsel of record if there is one AND waives jury trial
P must move for entry of default judgment
What are the summary judgment differences in VA state court?
1) not available for divorce or annulment
2) no provision for using affidavits
3) depostions can only be used if all parties agree
4) simply pleading a fact can create a triable issue
What is the size of a jury in VA circuit court.
cas involves more than 25k 7, 25k or less 5
What is VA's equivalent of JMOL? RJMOL?
Motion to Strike the Evidence - Motion to Set Aside Verdict (do not need to move to strike evidence in order to preserve this)
The Virginia Supreme Court has statutory authority to review any decision of the court of appeals of Virginia, although on most subject matters the availability of review requires a finding by the Supreme Court that the case involves a matter with______
SIgnificant presidential value
All criminal appeals must be sought by petition to the court of appeals, rather than the Supreme Court in the first instance. An exception is ____________convictions
permitted where death penalty is actually imposed
In VA GDC, When suit is brought on a written contract, note, or other instrument, __________must be tendered to the court for entry of judgment ____
the original document
unless the production of the original is excused either by the court for good cause or by statute.
Subpoenas to command witnesses with knowledge to attend the proceeding in general district court must be issued at least ___ days prior to the date set for trial.
In VA, where more than one person is arguably liable to the plaintiff for negligence, may a plaintiff may bring two or more separate lawsuits against multiple persons who are alleged to be jointly liable to plaintiff for a single injury?
What is the legal principle when a P settles with one or more Ds who are alleged to be joint tortfeasors in causing P's injury?
A joint tortfeasor may sue for contribution if the tort involved negligence and does not entail moral turpitude.
In VA, the SoL ofr a wrongful death action is_____ and such actions must be brought by a ___________ appointed by a Virginia circuit court.
2 years; personal representative
What are the grounds for service by publication in VA?
1) D is a non resident
2) There are interested parties whose names are unknown but the nature of their interest can be described
3) A sheriff in the city of the D's last known residence has been unable to make service for 21 days
In federal practice, there is a window of ____days after filing of the complaint, or after interposition of a responsive pleading, in which the plaintiff may—without leave of court—file a pleading that has been amended. In Virginia, by contrast, every amendment to the complaint must be accomplished with ___________. As in other jurisdictions, leave of court will be __________ in Virginia to accomplish this amendment, but if the plaintiff has failed to obtain approval by the court the amendment and subsequent proceedings treading upon the amended allegations will be deemed nullities.
21; leave of court; freely granted
If the motion to strike is granted, the trial court will normally also grant___________for the movant.
Describe the discovery sanction principles applied to VA civil cases?
Compliance with the disclosure requirements may be ordered on the ground that requested disclosures have not been made.
In VA discover, The report of the examining physician is filed with ______ and ______evidence unless tendered by the party examined.
the clerk; is not
In VA, in the case of failure to diagnose a tumor or cancer, the statutory period is the longer of the basic two year limitations statute for personal injury and medical malpractice claims, OR________
1 YEAR from the date on which the existence of a previously undiagnosed tumor or malignancy is COMMUNICATED TO THE PATIENT.
In Va, Declaratory relief is not available to adjudicate rights or liabilities regarding past conduct where the parties' ____________
rights have already become fixed
How is appeal brought from circuit court to courts of appeals?
what documents? Where and when should they be submitted?
1) Must file a NOTICE OF APPEAL with the CC clerk - within 30 days after entry of final judgment - copies to opposing counsel at same time - note whether there's a transcript, if so file w/ clerk oc trial court within 60 days after final judgment
2) appeal bond
3) $50 filing fee
4) a certificate stating the names addresses. phone. email, of opposing counsel that they have received copy
Which rulings of the trial court will considered as a basis for reversal on appeal in VA?
Only those rulings which were objected to during trial, with the grounds given for such objection. Unless good cause shown otherwise.
In what manner are the rulings of the trial court initially brought to the attention of the appellate court?
Appellant's Opening Brief. Must contain the following:
1) brief statement of the nature of the case
2) statement of errors
3) statement of facts
4) a statement of the principles of law that govern the case AND
5) a short conclusion that state the relief requested.
Define the following:
Bill to Quiet Title:
Declaratory Judgment: seeks to obtain a declaration of rights with or without consequrntial relief. - only available where this is a ripe pending dispute and ruling would guide future conductnot available unless standard CL remedies of legal or equitable relief are not available.
Unlawful Detainer: ajudicates the right to possession only
1) where any forcible entry is made upon lands
2) where the entry was peaceable, but the tenant detains the possession of land after his right has expired (without consent)
3) landlords remedy against tenent, does not determine title
Partition: available to joint owners of property, where joint ownership is not what's at issue
Bill to quiet title: used to adjudicate title, often by adverse possession. - can't be used to determine title where there is a hostile claimant (must use ejectment)
Ejectment: tries title AND obtain possession of a piece of land, w/ damages. 1) P must be out of possession and 2) show a superior right
Decisions of the State Corporation Commission are appealed to what court?
Virginia Supreme Court
Generally, a person called and reported for jury duty in VA cannot be permitted to serve as a juror during a term within the next____ years
A trial court has the power to vacate a default judgment or decree on the ground of fraud within_______of rendition?
P in a lawsuit against the commonwealth must notify the Commonwelath of the claim within _______of the accrual of the cause of action
Leave to amend a pleading is to be:
LIBERALLY GRANTED in FURTHERANCE of the ENDS OF JUSTICE
_____ of the appellate court justices are required for the court to sit en banc
VA supreme court review is discretionary and by petition in all instances except where what kind of case is involved?
When an appeal is granted, the court issues a___________ to all counsel. This determines the time period for filing breifs etc.
Certificate of appeal
When a party is required or permitted under the Virginia rule of Civil Procedure to do an act within a prescribed time after service of a paper on him, and the paper is served by mail, how many days will be added to the prescribed period?
When a party is required or permitted under the Virginia rule of Civil Procedure to do an act within a prescribed time after service of a paper on him, and the paper is served by fax, email, or commercial delivery service, how many days will be added to the prescribed service?
Virigina court of appeals oral arguments for a party shall not exceed ____ in length
In determing AIC in a civil action INterest and attorneys fees included?
both are excluded
If service of summons has b een timely waived on request, an out of state D must file responsive pleading sto the complaint within _____days after the date when the request waiver was sent.
Define Interlocutory Appeal?
an appeal of a nonfinal order and for which an appeal as of right does not exist.
AMicus briefs are allowed as a matter of right when filed by the _____and______, but on behalf of other only with consent of all counsel or by leave of court.
United States and the Commonwealth
A special grand jury consists of not less than ___ or more than _____ persons
5 and 9
A grand juror must have been a VA resident for at least how long?
In VA a general denial of the entire complaint or plea of the gneral issue is not permitted. true or false?
How does one have standing in a case for private nuissance?
1) occupancy of premises, 2) ownership. Furthermore, a prerequisite for maintaining a suit P must show that he has suffered some SPECIAL or PECULIAR damage distinguished from that inflicted on the public at large.
When would laches not apply to a nuissance claim where the P waits 7 years to bring a claim?
where the nuisance is continuing and the conditions creating the nuisance are GRADUAL and CUMULATIVE. Waiting to bring the claim would not be PREJUDICIAL to the Defendant.
How does a P force an arbitration award?
make a MOTION SUIT in CC to confirm the award. Upon confirmation, judgment will entered, then P can enforce the judgment
The Virginia Uniform Arbitration Act provides for proceeding to compel or stay arbitration upon the _________of any party showing an agreement to arbitrate. Then, the party seeking enforcement of the arbitration clause must do what?
file a MOTION TO STAY THE CASE and compel arbitration under this statute
If during litigation, arbitration is ordered, the court ordering arbitration, _______jdx to_____
to decide any disputes that arise, such as the scope of arbitration.
What are grounds for an arbitration award to be vacated?
1) award procured by corruption
2) partiality (or corruption, misconduct) of the abitrator
3) As exceeded their powers
4) As refused to postpone a hearing upon sufficient cause, refused to hear evidence or conducted hearing contrart to the act AND
5) absence of arbitration agreement and party oibjected
When appealing from the Circuit Court to the Supreme Court, what docs need to be filed in CC?
*Notice of appeal to Clerk off CC within 30 days (must cotainNotice must contain a statement of whether any transcript or statement of facts, testimony and other incidents will be filed.
• If a transcript is to be filed, the notice must certify that a transcript has been ordered from the court reporter.
• Must file the transcript in the office of the clerk of the trial court within 60 days after entry of judgment, and give written notice to opposing counsel within 10 days.
When appealing from the Circuit Court to the Supreme Court, what happens after notice to trial court has been filed?
* within 3 mos, file 7 copies of written petition - copy opposing counsel and save mail receipt evidencing date of mailing
*Note whether oral or filing a brief
*opposing counsel must file 7 copies of her reply brief within 7 days of service of the brief in opposition
*Panel of 3 judges hears peitions for appeal (only P is allowed to give oral here)
* If granted, p issues a writ of appeal by SC accompanied by a certificate executed by the clerk of the SC
*Must file appeal bont
* within 40 days 15 copies and 1 pdf of appellant's brief due
*25 days after opening breif, Apellee's breif due (15 copies)
*reply due 14 days after filing
* 3 copies of all breifs must be served on opposing counsel
* All 7 judges hear oral arguments from both parties
* Rehearing possible, written intent must be filed 10 days after order.
What is the borrowing statute in VA?
In suits against out of state Defendants, irregardless of the contract, Virginia courts will apply the statute of limitations period that is shorter, between the out of state Defendant and Virginia.
In VA, contrary to the FRCP, the use of deposition testimony in support of a Motion for Summary judgment is _______________by statute and the rules. In VA, motion for summary judgment may only be based on the ________________________
Pleadings and admissions
Does the court of appeals of VA have jdx to hear general civil appeals?
No, should go to VA supreme court
What must an appeal petition to the VA supreme court contain?
specific listing of the grounds for appeal (called assignments of error)
What rights does a D who is in default have to oppose damage claims at a hearing?
- can't offer arguments on issue of liability, but may:
1) object to P's damages evidence
2) XX the P's damages witnesses
3) offer evidence on damages
4) participate in jury selection
5) submit jury instructions on damages
6) make oral argument on damages issue
Where expert witnesses are to testify in a civil action, the court may at the request of all parties allow each party to have how many of its expert witnesses can remain in the courtroom?
In cases where recovery is sought for damage to a motor vehicle, they may be proved by an ITEMIZED STATEMENT sworn to by a person who must also UNDER OATH State:
1) that he is the repair person and qualified to determine amount of damages
2) the name of his business
3) length of time he has been doing particular kind of repair work
If exceeds $2500 copy of affidavit must be mailed to the opposing party or counsel at least SEVEN DAYS before trial, unelss counsel consents to the affidavit of damages.
In personal injury cases, medical evidence may be presented through a WRITTEN MEDICAL REPORT at least 10 days prior to trial and must be accompanied by:
PHYSICIAN'S SWORN STATEMENT:
1) he treated the party
2) the info is true, accurate and fully describes the injury
3) the statement of costs is true and accurate
4) copies must be accompanied by a SWORN STATEMENT by the record custodian that copies are true and accurate - must be kept in ordiary course of business
What are SoL for the following?
Attempt to Produce Abortion:
False statements of representations to obtain benefits under the VA Unemployment Compensation Act:
Attempt to Produce Abortion: 2
Petit Larceny: 5
False statements of representations to obtain benefits under the VA Unemployment Compensation Act: 3
How many justices are on the VA supreme court?
how many judges are on the VA court of appeals?
VA is divided into how many districts?
If oral argument is permitted by VA court of appeals, the court must give at least_____ of advance notice to counsel of the date, time, and place for oral argument, except in extraordinary circumstances
Appeals from a court not of record generally lie as of right to the circuit court if the amount involved is more than_____
In a motion to compel, a court ____ require the losing party to pay the prevailing party's reasonable expenses, inculding attorney's fees, unless the court finds that the opposition to the motion was ____________________or that an award of expenses would be unjust.
What are the exceptions to the 21 day rule?
1) Clerical mistake (typographical errors)
2) fraud on the court
3) proof of accord and satisfaction
4) void judgment
5) failed notice to counsel of final order
In VA, an appelant whose petition for appeal is granted must file an appeal bond of _____within ______from the date of the certificate of appeal.
Can an appeal to the VA SC be dismissed because of a defect in a bond payment?
1) appellee, within 21 days after the issuance of the cert of appeal, files a statement in writing of the defects of the bond
2) the appellant fails to correct the defects within 21 days after such statement is filed.
*Failure to make this motion in a timely manner is a waiver of an objection to the bond.
If a Def never receives service, or receives service after default has already been entered, what are his options ro remedy?
1) Motion to be releived of default (low standard) - freely granted - any good cause will do
2) Motion for Continuance - In order to file a late pleading to the complaint
3) Special Appearance (BEST OPTION) - if party claims no SoP was made, the court has no PJdx over the D, must make special appearence to challenge personal jurisdiciton
What are the statutory requirement to assert PJ over non-residents, pursuant to VA's long arm statute?
1) there must exist certain causes of action that arise from activities engaged in by them OR resulting from ownership of property in VA AND
2) the non resident D must have knowingly entered a transaction that involves contact with VA. (VA "single act" state when it comes to business transactions)
What are the requirements for a PETITION IN DETINUE FOR PRE-TRIAL SEIZURE?
1) describe property
2) state FMV
3) allege title
4) property will be sold and removed unless immediate action is taken
Explain Voir Dire?
"speak the truth" - questioning of potential jurors by judge and attorneys to determine any biases, prejudices, or other reasons for disqualification.
What is the statute of limitations on the right to foreclose?
A ruling of the trial court on granting or denying a new trial will not be renewed unless the trial court's decision was___________
If a new trial is ordered because damages were excessive, should the court grant the new trial on all issues, or should it limit the new trial to the issue of damages?
if the D's liability has been CLEARLY ESTABLISHED BY THE EVIDENCE, the new trial may be limited to the issue of damages.
However, if the award is so large that it suggests that the liability portion was the product of UNDUE SYMPATHY for the P or BIAS against the D, a new trial on all issues is required.
What must the court consider for reduction of punitive damages?
2) Measurement of punishment required
3) whether the award will amount to double recovery
4) proportionality between punitive and compensatory damages. AND
5) Ability to pay D
If the trial judge finds that the case is appropriate for remitittur, what must he do?
EXPRESSLY STATE THE FACTORS CONSIDERED AS JUSTIFYING REDUCTION,
the lower amount must bear a REASONABLE RELATION to the damages shown by the evidence.....otherwise verdict may be reinstated on appeal.