VA Civ Pro Flashcards
(215 cards)
1
Q
Long Arm Statute
A
Provides for specific personal jurisdiction over a nonresident if the nonresident causes a tortious injury in state by an act or omission in state, causes tortious injury in state by an act or omission out of state if he regularly does business in or engages other persistent course of conduct from which he derives substantial revenue in Virginia, contracts to provide services or things in Virginia, has interest in, uses, or possesses property in Virginia, transacts any business in Virginia, causes injury in VA to any person by breach of warranty, executes an agreement to pay spousal or child support to a VA domiciliary, has maintained in VA a matrimonial domicile at the time of separation of the parties on which grounds for divorce or separate maintenance is based at the time of the cause of action arose for divorce or at the time of commencement of suit, has conceived or fathered a child in VA, or has incurred a liability for taxes, fines, penalties, interest , or other charges in VA
2
Q
Single Transaction State
A
Virginia is a single transaction state, meaning personal jurisdiction is allowed even if there is only one business contact in Virginia
3
Q
Subject Matter Jurisdiction in Circuit Court
A
They can hear any civil action unless there is exclusive jurisdiction in another court. They cannot hear cases where the amount in controversy is $4,500 or less. Equity causes of action like injunctions must be heard in Circut Court.
4
Q
Subject Matter Jurisdiction in General District Court
A
GDC may hear actions at law, actions in detinue for recovery of personal property, attachment cases for personal property, interpleader cases for real or personal property if the amount in controversy is less than $25,000. GDC can hear claims for any amount of rent due or to oust a defendant from real property through unlawful entry detainer cases, or grant distress warrants to allow a creditor to seize property no matter what amount is in controversy. GDC has exclusive jurisdiction over cases with $4500 or less as the amount in controversy.
5
Q
Transfer between GDC and Circuit Court
A
if a plaintiff amends the complaint to increase or decrease the amount claimed and the amended amount affects jurisdiction, the court must transfer the case to the proper court without dismissal. If GDC and Circuit Court would have concurrent jurisdiction, the plaintiff decides which court will hear the case. The motion to amend and transfer must be made at least 10 days before trial unless good cause is shown
6
Q
Appeal from GDC to Circuit Court
A
cases heard in GDC can be appealed as a matter of right to the circuit court if the amount involved is more than $20. A case appealed to the Circuit Court is tried de novo. If D appeals, P can amend complaint to request more money. The appealing party must file a written notice of appeal with the clerk of the GDC within 10 days of judgment and post bond and pay writ tax at the GDC within 30 days of judgment (or 10 days if unlawful detainer case)
7
Q
Forum Selection Clauses
A
Virginia will enforce if fair and reasonable
8
Q
Category A Venue
A
D may object to venue if suit is brought at a location other than the specified venue.
9
Q
Venue for land cases
A
if the action involves the recovery, partition, or judicial sale of land, the establishment of boundaries, the subjection of land to a debt, unlawful entry or detainer, or removal of a cloud on title, then venue is where the land or a part of it is located. Also called local actions.
10
Q
Venue for wills cases
A
In actions to establish or impeach a will, venue is where the will was probated or if not probated, where it could have been offered for probate
11
Q
Venue for Writs
A
For mandamus, prohibition, or certiorari (review of zoning decisions), venue is at place where proceeding to which the writ relates is located
12
Q
Venue for injunctions
A
where the subject proceeding or judgment is pending or was rendered, or where the subject act is to be done, is being done, or is apprehended to be done.
13
Q
Venue for Virginia tort claims
A
tort claim against the state or state agency may be brought where the claimant resides or where the act or omission occurred, except that if the claimant is a nonresident and the tort occurred outside the state, venue is in Richmond
14
Q
Category B Venue
A
a defendant may object to venue if suit is brought at a location other than where the defendant resides or has his principal place of employment, where the D has a registered office, appointed an agent to receive process, or where such agent has been appointed by operation of law, where the D regularly conducts substantial business activity, where the action or any part arose (for contract can be place where it was entered into or place of breach), where the fiduciary qualified, where personalty is located if suit concerns recovery of personalty, where goods are received if based on delivery of goods, where personalty is located or evidence of it is located if to partition personalty (or where P lives), if none of the others are available, where D has property or debts owing to him, if all D’s are unknown or nonresidents or no other venue available, the where the P resides
15
Q
Objection to Venue
A
objections. are waived unless objecting party makes objection within 21 days after he receives service of process, or within any extension of time for filing a responsive pleading. Failure of one D to object does not prejudice other D’s to object. If a D whose presence created venue was dismissed, a remaining D may object to venue within 10 days of dismissal and must show the dismissed D was not properly joined or was added only to create venue. In GDC can object to venue on or before the day of trial.
16
Q
Transfer of Venue
A
court can transfer from one proper venue to another for good cause, including agreement of parties or to avoid substantial inconvenience to the parties or witnesses. The court also considers delay by the party seeking transfer Court may not transfer from Category A to non-Category A venue without consent of the parties.
17
Q
Forum Non Conveniens
A
If the cause of action accrued out of state, is brought by a nonresident, and there is a more convenient venue outside of VA, a court may dismiss without prejudice. The court must find good cause and that the other court has jurisdiction. This may be granted on certain conditions, like requiring the defendant not to raise certain objections.
18
Q
Service in GDC
A
Either a warrant if you use a civil warrant as the complaint or notice of a motion for judgment if you use a motion for judgment as the complaint. Civil warrant/motion for judgment is directed to the sheriff or deputy who serves on P. Return date cannot be more than 60 days or less than 5 days after service of process.
19
Q
Service in Circuit Court
A
Summons and copy of the complaint
20
Q
Who can serve process?
A
Process may be served by an adult civilian who is not interested in the case or by a sheriff or deputy. An officer may serve in her city or county and in contiguous localities
21
Q
Service on an Individual
A
First, the process server must attempt personal/actual service on the defendant.
If actual service is not possible after attempt, substituted service is allowed by delivering a copy at the party’s usual abode to a member of the family who is at least 16 and is not a guest. The process server must tell the family member the purpose of the document.
If actual and substituted service is not possible, the process server must post a copy of process on D’s front door and at least 10 days before taking a default, must mail process to D and certify to the clerk that the mailing took place. Circuit court requires the P to inform the D in the mailing that if D does not respond after 10 days from the mailing that P may seek default judgment.
22
Q
Process actually received
A
except in cases of divorce and annulment, if process is served improperly but the defendant actually receives it on time, the service is effective
23
Q
Is someone immune to service if they are present in Virginia only to serve as a witness in a civil case?
A
No, but there may be immunity if they are summoned for a grand jury or criminal case
24
Q
Service under the longarm statute
A
P can arrange for personal service on the D outside of the state or on the D’s agent in Virginia. But if P, after exercising due diligence, cannot locate the D, P must execute an affidavit setting forth that they could not locate D by due diligence and D’s last known address, and then gives process and the affidavit to the Secretary of the Commonwealth, who then certified mails the process to D at his last known address. The Secretary then sends a certificate of mailing to the court.
25
Service on domestic corporations and qualified nonresident corporations
all resident corporations and corporations qualified to transact business in Virginia must designate a registered agent to receive process. P may serve the registered agent or any officer or director. if the registered agent cannot be found, P may serve the clerk of the State Corporation Commission.
26
Service of process on a foreign corporation that is not qualifed
P may serve on any officer, director, or agent found in the state. if none is found, serve two copies of process and affidavit of corporation's last known address on the clerk of the SCC
27
Service under the Non-Resident Motorist Act
Serve the Commissioner of Motor Vehicles. Give affidavit of due diligence and D's nonresidence. If affidavit is false, there is no jurisdiction.
28
Non-Resident Motorist Act
Allows jurisdiction over the owner or operator of a vehicle involved in an accident in Virginia
29
Service by Publication
Never available for in personam cases and is only allowed for cases concerning right of property or status (ex parte divorce). t is obtained on affidavit stating compelling reasons to make such service and is entered by the clerk or judge commanding the D to appear on or before the date specified in the order, which cannot be sooner than 50 days after entry. Publication must be once a week for four successive weeks in a newspaper designated by the court or clerk. A copy must be mailed to the D's last known address and a copy must be posted at the front door of the courthouse within 10 days after entry.
30
The Return
Proof of service. It is a report by the officer who served process relating what she did to effect service and the time and manner of service. It must state any reasons for failure to effect personal service. The return is prima facie evidence of the facts asserted. Must be filed within 72 hours of service of process. It must be signed by the person making service and indicate the state and jurisdiction where accepted
31
Timeliness of Service
P must have process served within one year of filing the case. If P fails to do so and cannot show he exercised due diligence in serving D, his case may be discontinued at the discretion of the court.
32
Waiver of service of process
P may, in writing, request a waiver of service from any D. If the D refuses to waive without good cause, the court may impose the costs of service on him. If D waives service, he has 60 days if in state or 90 days if out of state to file any required responsive pleadings
33
Pleadings
must be filed in good faith, not for delay. must state in numbered paragraphs the facts to be relied on and will be sufficient if it clearly informs the opposite party of the true nature of claims or defenses. pleadings may name a law firm, but one lawyer's name must be set forth and signed. Documents that are the basis to a claim or defense should be annexed as an exhibit, which makes them part of the pleading
34
Motion craving oyer
Motion asking for a party to produce a document that is the basis to a claim or defense that should have been annexed to the pleading as an exhibit.
35
Attorney certificate to pleadings
an attorney or pro se party must sign all pleadings, motions, and other papers, certifying that she has read it, that to the best of her knowledge, information, and belief formed after a reasonable inquiry that it is grounded in fact and law or a good faith claim that the law should be modified, and it is not for harassment or delay.
36
sanctions for pleadings
sanctions may be awarded for an improper document and the party seeking sanctions may receive costs and attorney fees. Virginia does not have a safe harbor provision allowing a party to avoid sanctions by withdrawing a pleading. the party seeking sanctions must serve the motion on the opposing party before filing with the court.
37
Amendments to pleadings
no amendments will be made to any pleading after it is filed except by leave of court. leave to amend will be granted liberally in furtherance of the ends of justice. courts will consider whether allowing will delay proceedings, prejudice a party, or whether amendment will be futile.
38
alternative pleadings
can plead alternative facts as to alternative parties if they arise from the same transaction or occurrence.
39
Extensions of time for pleadings
court in the sound exercise of its discretion may extend the time in which parties are required to file pleadings and motions, even if the time for filing has already passed. court will consider the good faith of the moving party, prejudice to the other party, extenuating circumstances, and merit of proposed document
40
Procedure in GDC
D generally does not file a responsive pleading, he and P both show up on the return date and try the case.
41
Motion for a Bill of Particulars
in GDC, requesting more information and details about P's case before trail
42
Motion for Grounds of Defense
Motion in GDC by P asking court to require D to file a responsive pleading. in court's discretion to grant.
43
If court orders P to file a bill of particulars or D to file grounds of defense and they fail to do so, what can happen?
Court can enter summary judgment against a party failing to file.
44
Petition
when P is suing for mandamus, prohibition, or certiorari
45
Must P allege jurisdiction in the complaint?
No
46
Must P allege venue in the complaint?
No
47
Prayer
statement of relief, must be included in complaint
48
Ad Damnum Clause
Statement of relief for damages
49
What must be identified separately in the complainit?
Punitive damages
50
Barney sues Otis for damages from a car collision. Regarding negligence, Barney alleges that Otis's negligence in driving his car proximately caused P's injuries. Is this allegation of negligence okay?
yes, may allege negligence and proximate cause generally
51
What must a complaint contain
the name of the court, names and addresses of the parties, signature of lawyer, statement of facts in numbered paragraphs, and enough information to inform D of true nature of claims. Must allege a legal cause of action
52
Joining causes of action
actions in tort may be joined with contract claims as long as they arise out of the same transaction or occurrence. All claims relating to the same transaction or occurrence generally must be brought ni the same action or be barred by res judicata. HOWEVER, personal injury claims and property damage claims arising from the same transaction or occurrence may be split.
53
Defendant's Response
D must respond to the complaint within 21 days after service of process upon her. A responsive pleading is a motion objecting to venue, a demurrer, a motion to dismiss, a motion to quash process, a special plea, a motion for a bill of particulars, or a statement of grounds for defense.
54
Motion Objecting to Venue
Must state why venue is improper and what places would be filed. Must be filed within 21 days after service of process.
55
Process not served within 1 year of commencement
D makes motion to dismiss. If P did not use due diligence, the case is dismissed with prejudice. If P did use due diligence, motion is denied and D must respond within 21 days of denial
56
General appearance
any conduct engaging the merits of the case, including an answer, demurrer, special pleas, counterclaim, crossclaim, third party claim, conducting discovery, seeking a ruling on the merits, participating in proceeds related to the merits
57
Challenging personal jurisdiction
D must challenge PJ before making a general appearance. If D raises it at the same time as a general appearance or after, D has waived personal jurisdiction. Does not waive PJ if D requests or agrees to an extension of time to respond. D does not waive PJ if raising at the same time as a motion objecting to venue and for transfer.
58
Motion to Quash Process
motion arguing that service of process was improper or there was a problem with issuance of process or with the return. this defense is waived if D makes a general appearance, but can make this motion simultaneously with a response to the merits.
59
Demurrer
Tests the legal sufficiency of a pleading that seeks affirmative relief. reaches misjoinder of claims, lack of subject matter jurisdiction, failure to state a cause of action. Cannot allege new facts to defeat P's claim in the demurrer. If a demurrer is sustained, then the court will usually sustain without prejudice and set time for a P to amend. D can file a demurrer before her answer or at the same time, but if D files answer before demurrer, D cannot demur without court permission.
60
Motion to Strike the Pleading
used to test legal sufficiency of a defensive claim, Must be made within 7 days of filing
61
Special Plea
basically affirmative defenses. May be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer. Present a single set of facts which, if true, obviate the need to proceed further with the action.
62
Answer
Answer is filed in response to complaint. D responds to allegations of the complaint by admitting, denying, or stating lack of knowledge in numbered paragraphs and states any affirmative defenses called special pleas. If D does not deny an allegation, it is assumed to be admitted. A general denial is a sentence long and denies all allegations of the complaint. After the court has overruled all demurrers, pleas, and motions, D will be ordered to file her answer within 21 days
63
Sworn pleading requirements
if D wants to raise ay of the following defenses, he must do so under oath in a sworn pleading or affidavit:
- lack of genuineness of handwriting
- lack of corporate or partnership or agency status
- lack of ownership or operation of property or instrumentality
64
Contract and Account actions
P can file with his complaint/civil warrant/motion for judgment an affidavit stating the amount of his claim, that the amount is justly due, and the date from which he seeks interest. If D fails to plead under oath that P is not entitled to the money, judgment is entered for the P. If D does plead under oath, then P is entitled to continuance if she moves for it
65
Reply by Plaintiff
anything stated by D in his plea/motion/answer is deemed denied by P, so P does not have to file an answer. However, if D pleads a new matter in his defensive response and expressly requests that P respond to the new matter, than P has 21 days to admit or deny the new matter in a reply
66
Relation back for amendments
appropriate if the amended document concerns the same t/o as the original, the party seeking amendment has been reasonably diligent, and the other party is not substantially prejudiced.
67
relation back when adding a new defendant
new party had to have notice within limitations period of the action and knew or should have known that but for a mistake concerning identity, she would have been named originally
68
Discovery in GDC
no discovery in GDC as a general matter. can compel witness's attendance at trial through subpoena and subpoena duces tecum (bring stuff with you) addressed to parties or nonparties. should file request for subpoena at least 15 days before trial. after, must show good cause.
69
Are there required disclosures for discovery?
No.
70
Timingg
21 days for pretty much everything. 21 days for responding to interrogatories, for example
71
Maximum number of interrogatories that may be served without court permission
30 including subparts
72
Limits on depositions
no limit in VA court, but cannot take more than 10 or depose people twice in federal court w/o court permission
73
subpoena duces tecum
requesting documents from nonparties by filing a writing from the clerk of the court, with notice to all parties.
74
relevance of discovery materials
the material must be relevant to the subject matter of the pending action - relevant means reasonably calculated to lead to admissible evidence
75
discovery protocol for electronically stored informaton
a party who anticipates her response to discovery will require her to produce ES proposes a discovery protocol for ES within 21 days of being served with request (28 if the request accompanied the complaint. if the other party doesn't agree to the protocol, the parties must make a good faith effort to meet w/in 15 days to work it out
76
discovery of ESI
parties do not need to produce ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost. on motion to compel discovery, the party must show the burdens or costs rendering the material not reasonably accessible. even if shown, the court can still order discovery if the requesting party shows good cause
77
personal jurisdiction
first ask: is there a state basis (residence in state, long arm statute, NRMA)
second, ask: is there a constitutional basis (Does D have sufficient minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice?)
78
perpetuation of testimony
filing verified petition in court under oath to seek testimony of people attempting to leave the country even before a law suit has been filed
79
can a party seek discovery of the other side's insurance coverage even though it wouldn't be admissible at trial?
yes
80
in a case where P seeks punitive damages, can he get information about D's net worth and gross earnings?
yes, it's relevant because to punish D, we must know how much money they have
81
Can a party respond to an interrogatory by referring the requesting party to documents in which the answers can be found?
yes, if done in sufficient detail
82
third party beneficiary
can sue in his own right even if he's not mentioned in contract
83
joint obligors and tortfeasors
P can sue one of them, some of them, or all of them at her option. P can sue one and then sue others later. The fact that P may be barred from suing one or settles with one does not bar her from suing the others, though settlement with one can reduce the amount received by judgment against another. payment of the entire judgment by one discharges all.
84
Suing or being sued as a partnership
partnership can sue or be sued in its own name.
85
nonjoinder
deficiency of parties
86
misjoinder
excess of parties
87
adding parties
parties can be added by court order on P's motion and filing an amended complaint. any new parties must be served with process and file responsive pleadings
88
indispensable / necessary parties
court will not dismiss for failure to join necessary party without first permitting the party to attempt to join the missing party. but a court will dismiss if the party cannot be joined and is indispensable.
89
Persons to be joined if feasible
person who is subject to service of process must be joined if complete relief cannot be accorded in his absence or he claims an interest in the action and is so situated that the disposition of the action w/o him may impair his ability to protect that interest or leave other parties at a substantial risk of incurring multiple or inconsistent obligations. if such person should be a plaintiff but refuses to join, he may be made a defendant or involuntary plaintiff
90
when joinder is not feasible
court must determine if the action can move forward in equity and good conscience or if it must be dismissed, considering to what extent a judgment without that person would be prejudicial, extent to which protective matters could lessen prejudice, whether judgment without the absentee would be adequate, and whether P would have an adequate remedy if the suit is dismissed for nonjoinder
91
joinder of executor or administrator
if the case relates to acts of the decedent, the executor or administrator is sued in their representative capacity, with the caption of the case indicating that capacity. If the suit relates to acts by the executor or administrator as an individual (like entering into contract w/ accountant on behalf of estate), then can sue i neither capacity but must be sued not as representative of the estate
92
suing or being sued as a minor
As plaintiff, sue in her own name by whoever is her next friend. Court will not disturb choice of next friend unless there is a conflict of interest or impropriety. Judgment in favor of minor will not necessarily be disturbed by failure to sue through next friend.
As D, sue the minor in his own name, but ask clerk or the court to appoint a guardian ad litem who must be present throughout trial. if none is appointed but the minor is represented by an attorney who enters an appearance, the judgment will be valid. However, must have a guardian ad litem to encumber a minor's land
93
Suing or being sued as a person under disability
if he has substantial estate, usually a formal incompetency proceeding happens which results in appointment of a fiduciary to act for the incompetent person. such a fiduciary may be a committee or guardian or conservator. if such fiduciary is appointed, suit by or against the person under disability will be through the fiduciary. if person under a disability has not had a fiduciary appointed, then a guardian sues or they sue in their own name through a next friend. if a person with a disability is D, then judgment will be valid if represented by a lawyer, unless it is to encumber land.
94
suing an incarcerated person
while they are in custody, you cannot sue an incarcerated person, you must have a committee appointed and sue them
95
survival and revival
in Virginia, all causes of action survive the death of any P or D. If P dies during suit, the executor must make a motion to substitute himself as P. fi party has some other change in civil status (like being incarcerated or becoming disabled), the case survives but must be revived in the representative's name. If D is incarcerated during suit, then P can continue to pursue but must revive the case against D's committee.
96
filing a counterclaim
in circuit court, D must file within 21 days of service of process on her. in GDC, D must file any time before trial
97
compulsory counterclaim
there is no compulsory counterclaim in Virginia. D has the choice of whether to assert the claim, even if its transactionally related.
98
counterclaims
do not need to be transactionally related too P's claim. can be for any claim, under any theory, that D has against P. however, if there are multiple plaintiffs, D's claim must be against all plaintiffs jointly, so he cannot sue for an unrelated claim against P1 only. Counterclaims do not need to be served formally. After counterclaim, P has 21 days to respond. Counterclaim can exceed P's claim, but if in GDC, cannot exceed the jurisdictional limit.
99
cross-claim
claim against co-party. permissive, never compulsory. must be transactionally related to the underlying case. can be asserted against one of several co-parties. historically, you have needed to serve the cross-claim with summons, which may not be true anymore, but no clear case law. cross claimant must file within 21 days of service of process or anytime before trial if in GDC. cross-defendant has 21 days to respond.
100
impleader
when defending party wants to join a third party from whom he will seek indemnity or contribution from on the claim against him. D's pleading is called a third party complaint. D has a right to file within 21 days after filing first responsive pleading, but may seek leave of court to do so later. in GDC, must do so within 10 days after service or up until trial date, whichever is earlier. must serve process on third-party D (third party complaint and summons). P can make claim against TPD and TPD can make claim against P if arising from same t/o as the underlying case
101
Contribution among tortfeasors
a defending party can implead anyone who may owe him indemnity or contribution on the underlying claim. one important way is that tortfeasor can seek contribution from joint tortfeasor if tort is negligence and involves no moral turpitude. however, cannot implead a joint tortfeasor if P could not recover against them
102
interpleader
holder of real property or personal property knows there are others who claim a right to it, the they can interplead and force them to litigate in a single proceeding and claim that he should be able to keep the property. in GDC can order interpleader as to property worth 25k or less or in any amount for earnest money deposit in a land sale. GDC cannot issue an injunction against pursuing other related proceedings. Circuit court hears claims over 25k and can enjoin parties from litigating in other proceedings.
103
intervention
when an absentee seeks to join a pending case, they must file a petition for intervention. this is approved at the court's discretion and is only available at circuit court. there are no time limits prescribed. the claim or defense in intervention must be related to the case. the idea is that the court may be able to wrap up the whole dispute by allowing intervention. if petition is granted, then intervenor-plaintiff would file a complaint and serve it formally with process. defending parties then respond as they would to any complaint. if intervenor-defendant is successful, they file an answer in intervention
104
class action
no class action in Virginia state court
105
wrongful death
action brought by decedent's personal representative. if there are no beneficiaries, damages pass too the decedent's intestate takers. jury decides who gets how much and award can include another relative of decedent who was part of decedent's household and dependent on decedent for support. categories of damages are: sorrow, anguish, lost companionship; services and income provided by decedent; medical and funeral expenses; and punitive damages for wanton and willful misconduct. last 2 must be stated separately in verdict. if victim is injured and brings action for personal injuries before he dies and dies from the injuries, substitute personal representative as P and sue for wrongful death. beneficiaries cannot recover for pain and suffering of decedent but can recover punitive damages. cannot recover punitives from an estate
106
declaratory judgment
circuit court only. litigant wants declaration of rights in situation where there's actual controversy. in that or later proceeding can seek consequential damages
107
partition of realty
circuit court only - category A venue. can come up if co-owner wants to be free of other owner or creditor of co owner who has lien on. co-owner's interest wants to have that portion sold to satisfy debt.
108
partition in kind
divides property amongst various interested parties. preferred outcome and must be sought first by court.
109
partition by allotment
court allows one or more of the co-owners have the land and orders them to pay off the others. must first determine partition in kind is not practicably available
110
partition by sale
if partition in kind or by allotment are not feasible, court orders sale of land and divides proceeds.
111
action to establish boundaries
circuit court only as it concerns title or boundary to realty. category A venue. basically a declaratory judgment to establish boundaries between contiguous adjoining lands. non-tortious, so no rents or damages. order just describes boundary
112
ejectment
circuit court only, category A venue. P must be out of possession of realty and want to eject person in possession. object is to determine title and obtain possession. P may seek rents and profits n same action, D can get offset for improvements made to property
113
unlawful detainer
less formal than ejectment, does not determine title or boundaries to land. generally regarding leaseholds - LL sues to oust tenant and recover possession of realty that landlord clearly owns. P can recover back rent and damage to property. category A venue, available in circuit court OR GDC. no limit on amount in controversy. judgment does not bar later action for ejectment, trespass, or later-accruing rents.
114
detinue
available in GDC if controversy does not exceed 25k or in circuit court if controversy exceeds 4500. Detinue is to recover personal property or its value and damages for detention. P must have an interest and a right to immediate possession of the property. often for sellers to recover property under conditional sales contracts when the buyer fails to pay but keeps the item.
115
pretrial seizure in detinue
P can get immediate possession ex parte (w/o notice to other side) by verified petition that demonstrates description of property and showing P's right to it, and
risk that the property will be damaged or hidden or removed, and by posting bond of twice the value of the property, but the sheriff cannot enter D's house forcibly to seize the property. D can get the property back by posting bond in the amount of twice the value of property and giving notice t P.
116
medical malpractice
within 30 days after responsive pleading is filed, either side may request review by medical malpractice review panel of judges, attorneys, and health care providers. the panel is established by the VA Supreme Court. the request stays the tort action. the panel decides the case and the parties can accept the decision or resume the tort action. if the tort case is resumed, the panel's opinion is admissible in evidence, but is not conclusive. panel members may testify. opinion or record before the panel must contain evidence of the standard of care. can ask panel members about their deliberative process in discovery. statute applies to cases against health care providers including doctors, dentists, chiropractors, pharmacists, etc.
117
enforcement of arbitration agreement and awards
circuit court has jurisdiction to determine, upon timely petition, whether there is an arbitration agreement and to order the parties to arbitrate the dispute. if contract is silent on issue of arbitration, then court will determine if dispute is subject to arbitration.
118
confirming, vacating, or modifying arbitration awards
party can petition circuit court to confirm arbitration award into a judgment vacate or modify the award on limited grounds (fraud, corruption, undue influence on arbitrator, or if arbitrator acted beyond power or improperly to the prejudice of a party, or improper refusal to postpone arbitration hearing or hear material evidence)
119
general rule of accrual for action for statute of limitations
runs from accrual of the cause of action, meaning the date of injury or breach - not from the time P discovered or should have discovered harm
120
accrual for fraud, mistake, undue influence claims
when P discovers the harm (or when reasonable person would have discovered)
121
accrual of malicious prosecution claim
when underlying case ends
122
accrual of contribution claims
accrues when one pays more than her fair share
123
accrual of malpractice through continuous treatment/service
accrues at the end of related course of treatment
124
statute of limitations for personal injuries
2 years
125
statute of limitations for nonphysical personal torts (like malicious prosecution)
2 years
126
defamation statute of limitations
1 year
127
statute of limitations for property damage
5 years. if continuing nuisance, maybe one cause of action with statute starting from beginning, but if intermittent nuisance, could be different cause of action each time nuisance starts up again - not clear, argue on facts
128
statute of limitations for property damage for sales covered by the UCC
4 years
129
statute of limitations for fraud
2 years
130
statute of limitations for wrongful death
2 years from death, but complaint is barred if decedent was injured more than 2 years before his death and died from those injuries without bringing suit
131
statute of limitations for written contracts
5 years
132
statute of limitations for unwritten contracts
3 years
133
statute of limitations for unlawful detainer
3 years
134
how does defendant raise a statute of limitations defense?
special plea - cannot be raised in demurrer since it alleges new facts
135
who bears burden of proof about statute of limitations
defendant bears burden
136
tolling the statute of limitations
tolling means to stop it from running. minority or unsound mind can toll statute, so statute won't start running until party is 18 years old
137
tolling medical malpractice cases
minority does not toll medical malpractice cases if the child was 8 or older when the cause accrued. if the child was younger than 8 when the medical malpractice occurred, then he may sue until his 10th birthday.
138
mechanics of statute of limiitations
must file the case, not serve process, before the statute runs. filing tolls the statute. if P files suit against D one week before statute runs and then 2 weeks later takes a nonsuit, the P has a right to refile within 6 months or limitations period, whichever is longer.
139
statute of limitations with case against unknown defendant
case may be brought against an unknown owner or operator of a car as "Doe" (john or mary) and the statute of limitations will be tolled for 3 years to give P a chance to discover the identity of the defendant. if the Doe defendant has actual knowledge of the suit within the statute of limitations, an amendment to name him specifically after the statute runs may be deemed timely
140
statute of limitations for counterclaims and cross-claims
P filing the case tolls the statute for his own claims and for counterclaims and cross-claims arising out of the same T/O as P's claim
141
statute of limitations for impleader
if P files within 30 days of the expiration of the statute of limitations, D may implead up to 60 days past the statute's expiration
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Nonsuit
P decides to drop the case. P has a right to take nonsuit without prejudice unless jury is retired from bar, nonjury case submitted to court for decision, motion to strike evidence is granted, or demurrer or special plea is fully argued and awaiting decision. there is only one nonsuit as a matter of right. others can be allowed by the court with notice to all other parties. Party taking nonsuit must inform court of all previous nonsuits, and that number must be reflected in court order
143
refiling after nonsuit
P must file again in same court unless it lacks jurisdiction or venue or unless good cause is shown to litigate elsewhere. P can refile in federal court. P should refile within 6 months or the limitations period, whichever is longer.
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Default
party is in default if he fails to respond to an affirmative pleading within the allowed time. The court enters default automatically.
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What does D waive if in default?
D waives notice to further proceedings, but notice will be given to a counsel of record if there is one. Waives jury trial at further proceedings.
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Further proceedings when D is in default
P moves for entry of default judgment. If the damages are liquidated, a judgment is entered for that amount. if damages are not liquidated, P may move for hearing on damages, where there may be a jury if P requests. D can appear at hearing on damages but cannot present evidence on liability, only on damages.
147
summary judgment
granted if no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. any party can move for summary judgment. parties cannot base on deposition testimony unless all are agreed and cannot base motion on affidavit testimony. a conflict in the pleadings creates a triable issue of material fact, so if pleadings show dispute, summary judgment is denied. so only granted if pleadings, admissions, and orders show no genuine dispute of material fact
148
when is there a jury trial in circuit court
under state law, guaranteed jury for case at law but not at equity. if there are some legal issues and some equitable issues, the juries hear the legal issues first and the equity issues are then heard by the judge.
149
requesting jury trial
must file written demand within 10 days after service of the last pleading raising a jury triable issue. leave to amend does not extend this unless the court specifically says so. if there is a right to a jury but no party demands it, there is a bench trial unless the court orders a jury
150
jury size
if the case involves more than $25,000, then there are 7 jurors. if the case involves $25,000 or less, there are 5 jurors. but if parties consent, there may be 3 jurors.
151
voir dire challenges
parties may strike unlimited jurors for cause and each side has 3 peremptory challenges that don't have to be explain but must be exercised in a race-neutral and gender-neutral way
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voir dire procedure
a panel begins with the number of jurors to be selected plus 6 for the peremptory strikes. after voir dire, parties exercise strikes for cause. when one is stricken. another is brought onto panel. then each side uses its peremptory strikes. if there are extra jurors after all peremptory strikes, then the remainders are stricken by lottery. the jury is then sworn in
153
alternate jurors
extras, used when court thinks some juror may be excused during trial. alternates, selected at random, are not told of their status until deliberations are to begin.
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jury instructions
read to judy by the court. objections are waived if not made before the jury is charged.
155
can judge allow jury to view premises
yes if necessary to a just adjudications
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can judge allow pleadings into the jury room
no
157
can judge allow exhibits into the jury room
yes in court's discretion
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can judge give the jury her opinion of the credibility of witnesses
no
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sequestering
ordering witnesses not be allowed in the courtroom when other witnesses are testifying. court can grant motion to sequester witnesses. if a witness who was supposed to be sequestered sneaks back into the courtroom, court can allow them to testify in the court's discretion.
160
juries in equitable actoins
can be used in certain situations. any party has right to demand jury to decide facts regarding a special plea. the jury findings will be binding on the court. the court may on its own motion refer an issue out of chancery for findings of fact (often on conflicting evidence). this opinion is advisory. any party may file affidavit that the case will be rendered doubtful by conflicting evidence of another party, where the court may refer issues out of chancery for an advisory jury opinion.
161
can a judge ignore the findings of an advisory jury
no, can be an abuse of discretion to disregard findings supported by substantial evidence
162
presentation of evidence at GDC
usually testimony is given orally. in personal injury case, party may present evidence of treatment of injury by health care provider's report or by hospital records
163
medical reports in GDC
written medical report by treating health care provider may be admitted if written notice of intent to use is given to other party at least 10 days in advance of trial. health care provider's report must be accompanied by a sworn statement by the provider that the party was treated by her; the information contained in the report is true, accurate, and fully describes injury; and any statement of costs contained in the report is true and accurate
164
hospital records in GDC
copies of hospital records may be admitted if accompanied by a sworn statement of the person who had custody of the records that the copies are true and accurate
165
estimate of motor vehicle damages over $2500
in an action to recover damages to a motor vehicle in excess of $2500 in Circuit Court or GDC, evidence of damages may be admitted by itemized evidence or appraisal of person who repaired vehicle. in estimate, repair person must state under oath that: he is a motor vehicle repair person qualified to determine the amount of damages; the length of time that he has done such work; and the name and address of his employer. the estimate must be mailed to the adverse party at least 7 days before trial, or it cannot be admitted without adverse party agreement.
166
estimate of motor vehicle damages less than $2500
estimate can be used but does not need to be mailed or delivered to adverse party in advance of trial
167
presentation of testimony for legal actions in circuit court
usually by oral testimony, but deposition testimony can be used
168
trial of equitable causes of action in circuit court
usually evidence is by deposition transcript without live testimony. can be oral if court desires, and will be oral if court uses jury.
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ore tenus
oral testimony in equitable actions in circuit court
170
use of commissioners
matters concerning equity causes of action may be referred to a commissioner, who is not a judge, but who assists the judge in deciding the case. the judge sends matters to the commissioner by a decree of reference, which spells out what the commissioner is to do. usually commissioner is asked to determine facts and suggest conclusions of law.
171
when may commissioners in chancery be used
all parties and court agree or court finds god cause on facts of case. frequently tested on exam in the context of partition of land
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capabilities of commissioner
commissioner can subpoena witnesses and take testimony. she takes record of evidence she finds inadmissible. she files report with the clerk of the circuit court and notifies counsel of record of that fact.
173
after the commissioner files report, how long do the parties have to file objections in court?
10 days
174
is the commissioner's report binding?
meant to assist and not bind the judge. as to matters of fact, the judge is free to make her own findings, but may be reversed for abuse of discretion if she ignores findings that are supported by the evidence. on maters of law, the commissioner's report is entitled to no deference.
175
motion to strike the evidence
functional equivalent of motion for judgment as a matter of law. standard to grant is that reasonable people could not disagree as to the result. the fact that D moves at end of P's case does not estop D from introducing more evidence. if the judge feels standard s met, he grants motion to strike evidence and enters summary judgment
176
verdict
jury's finding. verdict must be unanimous unless parties stipulate otherwise. if the verdict isn't unanimous and there is no stipulation, there is a hung jury and mistral
177
relief granted by jury
the relief sought in the complaint is the most that the P can recover.
178
judgment
official announcement by the court of the decision in a legal cause of action
179
decree
official announcement by the court of the decision in an equitable cause of action
180
post trial motion in GDC
party can seek rehearing no later than 30 days after entry of judgment. court must rule on motion no later than 45 days of the entry of judgment.
181
post trial motion in circuit court
party must make motion within 21 days.
182
in the breast of the court
21 day period where the circuit court retains jurisdiction. every final judgment or decree remains under the control of the court for 21 days. during this period, the court can suspend, vacate, or modify. the judgment or decree. court must suspend judgment if it wishes to take action after 21 days.
183
motion to set aside verdict as contrary to evidence
equivalent of renewed motion for judgment as a matter of law. it is not required for a party to move to strike the evidence before filing.
184
motion for new trial
move for new trial no later than 21 days after judgment. grounds include: prejudicial error or misconduct by court (erroneous jury instruction, etc); misconduct of party, attorney, juror, or third party; new evidence has been discovered (could not have been undiscovered due to lack of diligence); unfair surprise by evidence presented at trial that has material outcome on trial; excessive or inadequate damages
185
test for new trial due to verdict being too high or low
does damages figure shock the conscience
186
should a judge order a new trial on all issues?
yes if damages are not separable from liability
187
can a judge order a trial on damages only?
yes, if liability for damages is well established.
188
remittitur
judge telling P to accept reduced award for damages or go to new trial
189
options if judge suggests remittitur
accept without protest; accept under protest and try to appeal order to remit; or reject remittitur and go through new trial and, if still aggrieved, attempt to appeal on ground that the ground of new trial was error. to do ths option, P must make exception to the order of new trial after rejecting remittitur
190
additur
if liability si clear but verdict is obviously inadequate, court can order new trial or suggest additur, meaning defendant must pay higher amount or submit to new trial.
191
bill of review
for equity cases only, a party can seek review of final decree for up to 6 months after entry. grounds for bill of review is can file with leave of court to correct errors apparent on face of record or can file with leave of court based upon new evidence
192
final judgment rule
judgments and decrees must be final to be appealed. court entering nonsuit against D's objection is appealable final judgment
193
interlocutory appeals
interlocutory orders are appealable if the court certifies: 1) there is substantial ground for difference of opinion; 2) there is no clear VA appellate procedure; 3) determination of the issues will be dispositive of a material aspect of the case; and 4) court and parties agree that it is in the parties' best interest to seek interlocutory review. must file petition with supreme court within 10 days of certificate by circuit court
194
appeal of partial final judgment
partial final judgment is final judgement as to one party if multiple parties are involved. may be appealable if the trial court enters a partial final judgment on the claim, the interests involved are separate and distinct from those remaining, results of appeal on the partial final judgment will not affect decisions in remaining causes of action, and results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgement.
195
appeal from GDC to circuit court
final judgements that involve more than $20 are appealable to circuit court. circuit court hears case de novo. must fie notice of appeal in GDC no later than 10 days after entry of judgment, post bond and pay writ tax and costs in GDC no later than 30 days after entry of judgment (10 days n unlawful detainer), and seeking rehearing does not alter tmieline
196
appeal from circuit court to Virginia court of appeals
right of appeal from final judgments and rulings granting or denying injunctions in domestic relations cases and in some administrative matters. file notice of appeal in circuit court w/in 30 days after entry of appealable decision
197
appeal from circuit court to virginia supreme court
allowed in civil cases involving at least $500. discretionary - supreme court not required to hear an appeal in general civil case.
198
preservation of issues for appeal
must make exception in trial court with reasonable certainty at the time of the ruling. stating the judgment is contrary to the law is not reasonable certainty. failure to object to jury instructions before jury is charged waives objection
199
adverse authority on appeal
counsel is under obligation to bring adverse authority to the court's attention
200
mechanics of appealing from circuit court to supreme court
file notice of appeal with the clerk of circuit court no later than 30 days after appealable judgment or decree (post-judgment motion does not affect timing unless court suspended judgment within 21 days). mail or deliver a copy of the notice of appeal to counsel for other parties. notice states whether they will file transcript or written summary of trial and, if transcript, certify it's been ordered from court reporter. successful P can execute no judgement even f D has filed notice of appeal - to avoid, D must post a suspending bond in amount to be sent by trial court (if P appeals, must post appeal bond if Supreme Court grants appeal). clerk of circuit court prepares record for transmission to supreme court - consists of pleadings, jury instructions given and refused, exhibits, orders entered, etc.
201
transcript as part of record
transcript only part of record if filed with clerk of circuit court no later than 60 days of entry of judgment or decree. must notify other counsel within 10 days after filing. if not filing transcript, can prepare written statement of facts, testimony, and other incidents of the case. must be filed with circuit court within 55 days of entry of judgment or decree and mailed to other counsel noting that it will be presented to the trial judge no earlier than 15 and no later than 20 days after filing. any party can object to transcript or written statement if erroneous or incomplete. court corrects errors and signs and then it's part of the record.
202
filing petition for appeal with supreme court
file 7 copies of the petition (contains parties, assignments of error w/ particularity, certificate re: whether oral hearing on petition is desired (only counsel for appellant would be heard)) for appeal with the Clerk of the Supreme Court no later than 90 days of appealable judgment or decree asking Supreme Court to hear the case. appellee may file brief in opposition to petition for appeal and state grounds of cross-appeal - court need not wait to rule on petition
203
ruling on petition for appeal with supreme court
supreme court may deny petition, appellant may request rehearing no later than 14 days of notice of denial. supreme court may grant petition, in which case it sends certificate of appeal to all parties. they file briefs and have oral argument on the merits unless waived. f petition is granted, appellant must file appeal bond within 15 days of certificate. if bond is not n proper amount, other party may object within 21 days of certificate, and if not fixed, court may dismiss appeal
204
preclusive effect of judgments
determining if judgment/decree entered in case 1 precludes parties from litigating in case 2. if case 2 is in a different court system from case 1, the law of the system that decided case 1 will be used to decide preclusion.
205
case 1 is in Virginia state court, judgment is entered. case 2 is in federal court. what law of res judicata and collateral estoppel is used?
virginia law
206
res judicata
claim preclusion. can only sue on a cause of action once. requirements:
case 1 and 2 brought by same claimant against same D; case 1 ended in valid, final judgment or decree on the merits - any judgment is on merits unless based on jurisdiction, venue, or indispensable parties; case 1 and 2 involved assertion fo same cause of action. in VA, where personal injuries and property damage arise from same T/O, they are different causes of action
207
collateral estoppel
issue preclusion. precludes relitigation of particular issue that was litigated in case 1. requirements:
1. case 1 ended in valid final judgment on merits.
2. issue presented in case 2 was actually litigated and determined in case 1
3. issue was essential to judgment in case 1
collateral estoppel may be asserted only against one who was party to case 1. it is always ok for someone who was party to case 1 to use collateral estoppel in case 2. Virginia does not allow nonmutual collateral estoppel.
208
if the judgment or decree in case 1 has been appealed, is the judgment or decree entitled to res judicata or collateral estoppel?
under virginia law, no. under federal law, yes.
209
A sues B in Virginia state court. B sues A about the same event in federal court. both cases are pending at the same time. is there any role for preclusion?
no. no final judgment entered
210
can federal court avoid duplicative litigation if A sues B in Virginia state court and B sues A about the same event in federal court?
Claim by B against A was not compulsory countercllaim in state case - because no such thing in Virginia. When B sued A in federal court, A's claim against B was already pending, so not counterclaim in federal case. Federal court cannot really abstain ether here. whichever goes to judgment first may be used for preclusive effect
211
Merger
res judicata when claimant won case 1
212
barred
res judicata when claimant lost case 1
213
supersedeas bond
one that suspends operation of judgment on appeal
214
pendente lite
during littigation
215
motion in limine
pretrial motion, usually to determine whether jury should hear certain evidence.
