VA Civ Pro Flashcards
(156 cards)
1
Q
What is Doctrine of Res Judicata?
A
Precludes parties from relitigating the same cause of action (claims relating to same conduct, transaction or occurrence) when a valid final judgement was entered.
It can have 4 different effects: merger, direct estoppel, bar collateral estoppel.
2
Q
Collateral Estoppel
A
Precludes parties to a prior action from litigating in a subsequent action, any factual issue that was actually litigated and essential to a valid final judgement, in the prior action.
3
Q
Requirements for Collateral Estoppel
A
(i) the parties to the prior and subsequent proceedings must be the same.
(ii) the factual issue sought to be litigated, must have been litigated in the prior action.
(iii) the factual issue must have been essential to the judgement in the prior proceedings
(iv) the prior action must have resulted in a judgement that is valid, final, and against the party whom the doctrine is sought to be applied.
4
Q
Subject Matter Jurisdiction
A
Three types of Subject Matter Jurisdiction
1) Diversity
2) Federal Question
3) 3) Supplemental Jurisdiction
5
Q
Diversity Jurisdiction
A
Subject matter jurisdiction based on diversity exists when:
1) Complete Diversity - Every Plaintiff is diverse from every defendant
2) Amount of controversy exceeds $75,000.00
6
Q
Where is a corporation a citizen of?
A
Every U.S. state in which it is incorporated in and the one U.S. state in which it has it’s principal place of business.
7
Q
Federal Question
A
Exists when the claim arises under Federal Law, the U.S constitution or a Federal Treaty -
Plaintiff must be enforcing a federal right -
Federal question must be present on the face of a well pled complaint. -
Raising a defense under federal law is not sufficient.
8
Q
Personal Jurisdiction
A
Jurisdiction over the parties.
A Virginia court may exercise personal jurisdiction over a Defendant if the long arm statute of Virginia and the U.S. constitution are satisfied.
9
Q
Virginia Long Arm Statute
A
A court “may exercise personal jurisdiction over a person who acts directly or through an agent, as to cause of action from…transacting business in the commonwealth.”
Long arm statute extends it’s reach to a single act of business, if that act is significant and demonstrates purposeful activity in VA.
Examples:
1) Causing tort or injury in the state a VA by an act or omission inside the state. I punch Adam in the face in our apartment in Alexandria.
2) Causing tort or injury in the state of VA through an act or omission outside of the state. Ex. A car was built in Ohio and the airbag malfunctions, causing me injury in VA.
3) Contracts to supply goods or services in VA
4) Has an interest in, uses or possesses realty in VA
5) Transacts any business in VA. VA is a “single transaction” state. There is PJ even from just one business contact in VA.
6) Causing injury in VA by breach of warranty where sale is out of state. - ok if seller could reasonably foresee effects in VA, does business in VA or derives substantial revenue from goods consumed in VA
10
Q
PJ - Constitutional Requirements
A
In order to satisfy the constitutional due process requirements the Defendant must have minimum contacts with the forum state that would be fair and reasonable.
**Prong 1: Minimum Contacts: **
(a) General Jurisdiction: contacts so substantial and of such nature that the D is essentially at home. - For an individual, this would be their domicile. - For a corporation they are “at home” where they are incorporated or headquartered.
(b) Specific Jurisdiction: the connection between the forum state and underlying controversy and lawsuit must arise/relate to the Defendant’s contact with the state.
**Prong 2: Fair and Reasonable. **- The suit must not offend the traditional notions of “fair play and substantial justice.”
11
Q
Supplemental Jurisdiction
A
Allows a party to bring a state claim into Federal Court that does not meet the requirements of SMJ on it’s own.
Requirements:
the claim must arose from a common nucleus of operative fact as the other claims the court has SMJ over (the claims must arise from the same transaction or occurrence.
12
Q
What cases can VA state courts hear?
A
Any cases except those with exclusive federal jurisdiction (federal anti-trust, patent infringement, bankruptcy)
13
Q
How many trial courts in VA?
A
- Circuit Court & General District Court
14
Q
What cases can circuit courts hear?
A
Any civil action, except for those which exclusive jurisdiction is vested in another court. Amount in controversy must be more than $4,500.00.
15
Q
General District Court
A
SMJ in GDC is statutory and basically for causes of action at law and not equitable claims.
Characteristics:
1) Less formal than CC. No formal pleadings or discovery.
2) Never get a jury in GDC
3) Injunctions cannot be granted. (Exception - can get an injunction to enforce FOIA)
4) Can hear actions at law in torts or contracts or actions for detinue (recovery of personal property or value thereof) only if amount in controversy is less than 25K.
5) Can hear attachment cases for personal property if amount in controversy is less than 25K. (If attachment involves realty, must go to CC).
6) Can hear interpleaders. As long as amount in controversy is 25K or less. - Exception - Can hear interpleader for any amount even more than 25k in cases involving earnest money deposit in land sales K.
7) Can hear claims for rent due or to oust Def. from property. No 25K cap.
8) Can grant distress warrants (creditor seizes property) regardless of the amount.
9) Has exclusive SMJ over cases where recovery is less than $4,500.00Note: Each GDC has a small claims court with concurrent jurisdiction over claims that do not exceed 5k.
16
Q
Appeals from GDC to CC
A
There is an absolute right to appeal a case from GDC to CC if the amount involved is more than $20.
Steps to appeal final judgement to CC:
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 days if unlawful detainer case)
17
Q
What does CC do with the appealed GDC case?
A
Hears the case de novo. - New trial in CC. This is why GDC is a court of no record.
18
Q
GDC enters a final judgement, Plaintiff moves to appeal to CC. Now may Plaintiff seek leave to amend to increase claim to over 25K?
A
No. Plaintiff can only increase the claim to over 25K if Defendant is the one appealing the case to CC.
19
Q
Will VA enforce a contractual provision that says a case must be brought in a particular place (forum selection clause)?
A
Yes. A contractual provision designating a forum for contract disputes is not against public policy, and is enforceable. These contractual provisions on their face are valid and should be enforced, unless the party challenging it’s enforcement can establish that the provision is unfair or unreasonable or that they were affected by fraud or unequal bargaining power.
20
Q
Category A - Venue
A
Cases where the VA statute sets out the appropriate place for trial.
1) Local Actions: Actions for the recovery partition, or judicial sale of land, to establish boundaries of land, for unlawful entry onto land, or anything else involving land, venue is appropriate where the land or any part of it lies.
2) Wills: Where the will was probated. If not yet probated then where it could have been offered for probate.
3) Writs: For mandamus (e.g forcing an officer to perform ministerial act), prohibition (e.g. stopping lower court from exercising jurisdiction), or certiorari (e.g. for review of zoning decisions), lay venue at the place for which the writ relates is located.
4) Injunctions: Where the subject proceeding or judgement is pending, or was rendered, or where the subjecy act is to be done, is being done, or is apprehended to be done.
21
Q
Category B Venue - Anything not included in category A.
A
1) Where Defendant resides or has place of employment
2) Where the cause of action or any part of it arose.
3) Where Defendant has a registered office or appointed agent.
4) Where Defendant regularly conducts substantial business activity (but case itself must have some practical nexus with the place); or
5) In case to recover personal property - Where property is located. 6) In case against a fiduciary appointed under court order, where fiduciary is qualified.
22
Q
What happens if case is filed in an improper venue?
A
Court will transfer the case to a proper venue. (WILL NOT DIMISS CASE FOR IMPROPER VENUE)
23
Q
Transferring from a proper venue?
A
If a case is already in a proper venue, it can be transferred to another venue on Motion by either party, as long as the court finds good cause for transfer.
Factors relevant to good cause: the court weighs
(1) plaintiff’s choice of forum against things like
(2) agreement of parties
(3) avoidance of substantial inconvenience to parties or witnesses
(4) delay in parties seeking transfer. etc.
Decision to transfer is in court’s discretion.
Note: VA Supreme Court has found that the trial court abused discretion when it refused to transfer case from Place where Def. had principal place of business to place where cause of action occurred, plaintiff worked, and witnesses were located.
24
Q
Forum Non Conveniens
A
A court may dismiss an action if the cause of action:
(a) arises out of state
(b) is brought by a non resident of VA and
(c) there is a more convenient venue outside of VA
The court must find (1) good cause and (2) that the other court has jurisdiction.
25
What must you serve the Defendant with?
Summons & Complaint
Note: In GDC a summons is called either a Warrant (if you use a civil warrant as a complaint) or a Notice of Motion for Judgement (if you use a motion for judgement as a complaint.)
In CC - it's called a summons.
26
Who can serve the summons and complaint?
Any adult civilian who is not a party to the case or by the sheriff or deputy. An officer may serve in her city or county or contiguous localities (county city which is bordering or touching the county, city they are in) Plaintiff pays officer a fee.
27
Service on Individuals
Three ways to effect this. VA follows a descending order rule, meaning you can only move down the latter if one of the higher forms of service is impossible.
1) Personal (or actual) service: Deliver service directly to Defendant. THIS MUST BE TRIED (AND UNAVAILABLE) BEFORE YOU CAN TRY ANY OTHERS.
2) Substituted Service: - Service at Defendant's usual abode - Served on a member of D's family, at least 16 years of age. (CANNOT BE A GUEST) - Must tell person the purpose of the documents.
3) Posted Service: If other two are unavailable, you can:
(1) post a copy of the process on D's door and
(2) at least 10 days before taking the default judgement, mail process to D and certify to clerk that mailing took place. -
In CC when Plaintiff mails the process to D they should also state that if D defaults, after 10 days from mailing, P can seek default judgement.
28
Curing a Statute
Hypo: Actual service not possible, the process was left with D's 10 year old son at D's house. The child gives the documents to Dad. Although technically not proper service , it is ok if Defendant actually and timely received it.
Note: Curing statute NEVER APPLIES in divorce and annulment cases.
29
Can Plaintiff request by mail that Defendant waive formal process?
Yes.
30
Immunity
If Defendant is in VA to be a witness in another civil case, is she immune to service of process for a VA civil case? No. But she would be in a federal civil case.
31
Serving under long arm statute
1) Plaintiff must execute an affidavit stating that
(a) Defendant is a non resident or cannot be found with due diligence and
(b) Defendant's last known address.
2) Plaintiff gives copy of the process and affidavit to the Secretary of the Commonwealth
3) Secretary sends out the process to D by certified mail.
4) Secretary sends certificate of mailing to the Court. OR Plaintiff can arrange for personal service outside of the state by someone authorized to serve process in that state.
32
Service on a VA corporation and a Corporation qualified to do Business in VA
Serve (1) registered agent or
(2) any officer or
(3) director of corporation.
If registered agent cannot be found, then serve the clerk of the state corporation commission.
33
Service on other foreign corporations
Any officer, director, or agent of the corporation found in VA. If none found, serve two copies of process and affidavit of corporations last known address on the clerk of the State Corporation Commission.
34
Service under the Non-resident motorist act
Give affidavit of due diligence and D's non residence. If affidavit is false, no jurisdiction.
35
Service by Publication (Constructive Service)
Never available in personam. Only used in cases involving rights to property or status (ex parte divorce) Only ok if Plaintiff gives an affidavit showing they have used due diligence to find Defendant but have not had success. If this is used, D has 50 days to respond to the complaint. If the case is against a non resident. P can have a Sherriff in D's county serve the D. If the sheriff serves then D has 21 days to respond . Affidavits in support of publication notice, must state D's last known address or the fact that the address is unknown.
36
Proof of Service
Report to the court by the person who attempted service. They must state what they did to effectuate service and the reasons for failing to serve. If service was made by an officer, it is prima facie evidence that what is stated is true.If it is a civilian, it is merely evidence of service and not prima facie evidence. Proof of service must be signed by the person making the service and state the jurisdiction where service was done.
37
Timeliness of Service
P must have process served within one year of filing (unless they show due diligence). The Court must hold a hearing and give P 30 days notice before dismissing on this ground.
38
Basics of a Pleading
(1) Must be numbered in paragraphs and state the facts which you are relying on.
(2) At least one attorney's name must be on the pleading and they must sign.
(3) Documents which are part of claim or defense must be annexed to the pleading.
39
Motion Craving Oyer
If there is a document that should have been attached to a pleading but wasn't, the other party can make this motion and if granted it requires the other party to produce the document and it is treated as being annexed to the pleading.
40
Attorney Certificate
Attorneys or pro se parties must sign all pleadings, motions, or other papers certifying that:
1. they have read it and
2. that to the best of their knowledge information and belief it is grounded in fact or law (or in good faith that the law should be modified) and
3. it is not for harassments or delay,You can be held liable for sanctions and attorneys fees for an improper document.
41
General District Court
Basics
Rules are less formal.
1) P obtains a civil warrant from the clerk and fills in the blanks regarding the parties and nature of grievance.
2) Civil warrant is served on D by Sherriff or deputy
3) The warrant tells D he must appear in court on a certain day.
4) D generally does not file a responsive pleading. He and P show up on the specified date and try the case.
5) No discovery. Instead if D wants more details about P's case they can move for a bill of particulars. This is at the discretion of court. - Similarly if P wants the grounds of D's defense they can move for grounds of defense. Also discretionary. - If the court orders a bill of particulars or order D to file grounds for defense and they fail to comply, the court can enter summary judgment against the party failing to file.
6) If the suit is brought on a written instrument, the original document must be tendered to the court unless excused by the court by statute or for showing of good cause.
7) Can object to venue anytime on or before day of trial.
42
Circuit Court Complaint
Must have:
1) Name of court, names of parties, statement of facts numbered, must clearly inform D true nature of the claim.
2) Must make a prayer of relief.- A statement of relief for damages is sometimes called an Ad Damnum Clause. -
Punitive damages MUST be identified separately in the prayer for relief. Does not need to allege jurisdiction or venue.
Can join multiple claims arising from same transaction and occurrence.
Ex. P buys new tv, the tv explodes in his house causing injury to P. They can sue for breach of contract, warranty, and negligence all in one suit.
43
How many days does D have to response to P's complaint?
21 from service upon them.
44
Ways D can respond to complaint
1) Motion for Bill of particulars
2) Motion objecting to venue
3) Process Not served within one year.
4) Motion to Quash Process
4) Motion Challenging PJ
5) Demurrer
6) Special Plea
7) Answer
8) Equitable defense to legal actions.
45
Motion for Bill of particulars
Ask the court to require P to amplify her pleading. This motion must be made promptly.
46
Motion objecting to venue
Must state why venue is improper and what other venue would be proper.
Must be timely filed. W/i 21 days of service.
If D files a defective motion (ex. forgets to include what venues are proper) court still has power to transfer.
47
Motion - Process not served within one year
D makes a motion for special appearance. If P did not use due diligence in trying to serve D then the case is dismissed with prejudice.
If due diligence was used then motion is denied and D must respond in 21 days.
48
Motion Challenging PJ
If D makes a "general appearance" she waives this defense.
General appearance is any conduct that engages in the merits of the case. This includes: an answer, demurrer, special please, counterclaim, cross claim, third party claim, conducting discovery (except as allowed by court on a jurisdiction issue) seeking a ruling on the merits, participating in proceedings on the merits.
D must raise lack of PJ BEFORE doing anything that engages the merits. If they raise it at the same time or after engaging the merits, it is waived.
Ex. If defendant files an answer and in the answer they assert lack of PJ. they have waived the defense. If D is sued and they respond with a motion to transfer venue, they have waived PJ.
49
Motion to Quash Service of Process
Saying that service of process was improper..Same as with PJ. This defense is waived if it D makes a general appearance. However this defense can be made before or with a response to merits.
50
Demurrer
Tests sufficiency of pleadings that seeks affirmative relief.
Ex. It can bring up misjoinder of claims, lack of subject matter jurisdiction, failure to state a cause of action (main use)
Examples of failure to state cause of action:- in negligence claim, P fails to state duty owed by D - In suing employer for tort, P fails to state employer/employee relationship
A demurrer must specifically state why pleadings are insufficient. It cannot just say "fails to state facts showing P is entitled to relief" or " pleading is insufficient as a matter of law."
Demurrer cannot allege new facts. Must be filed before answer or at the same time. if not filed before or at the same time as answer then cannot be filed without court permission.
Demurrers are sustained or overruled. Not granted or denied.
Once the court has overruled all demurrers pleas and Motions then D will be ordered to file answer in 21 days or however much time court gives.
51
Special Plea
Affirmative defenses like res judicata or statute of limitations, or statute of frauds. May be raised separately, as a motion to dismiss, or stated like affirmative defenses in the answer.
52
Answer
Includes:
(a) responses to allegations of complaint (admit, deny, lack of knowledge)
(b) in numbered paragraphs
(c) affirmative defenses A general denial is one sentence long and it denies all of the allegations of the complaint.
53
Equitable Defenses to Legal Actions
Defenses like failure of consideration, fraud in inducement, breach of warranty, unconscionability
54
Special Sworn Pleading Requirement
Which Defenses must be raised in a Special Pleading?
1. Lack of genuineness of handwriting
2. Lack of corporate partnership or agency status
3. lack of ownership or operation of property or instrumentality
If D files an unsworn pleading for one of these defenses, P can move to strike pleading within 7 days after D files.
If P does not object within 7 days, they waive objection.
Contract & Account Actions: In an action on a contract seeking payment of money, plaintiff can file with his complaint an affidavit stating the amount of his claim, that the amount is justly due and the date from which he seeks interest. - D must plead under oath that P is not entitled to money,
55
Does Plaintiff have to respond to Defendant's answer?
No, generally whatever D says in their plea, motion, answer etc. is automatically deemed denied by P so plaintiff doesn't have to do anything.
Exception: If D pleads a new matter in his response and expressly requests that P respond to the new matter then P has 21 days to admit or deny the new matter in a document called a reply.
Note: If D's answer is insufficient legally, P cannot file a demurrer (since they only are for pleadings which assert a cause of action). Instead P would file a Motion to Strike the pleading.
56
Amending Pleadings
in VA you NEVER have a right to amend.
You MUST request leave from the court to amend.
if an amendment is filed without leave of court, the amendment has no legal effect. They are nullities.
Note: If you want to amend to add new parties, you must get leave to amend before the statute runs.
Amendments will be allowed liberally to further the ends of justice. The court considers whether allowing the amendment would unduly delay the proceedings, or prejudice a party, or whether the amendment would be futile.
The trial court's decision will be upheld unless it is an abuse of discretion.
57
Relation Back - Amendment
Allowed if the amended document concerns the same transaction or occurrence as the original, the party seeking the amendment has been reasonably diligent and the other party is not substantially prejudiced.
Exception: When adding a new defendant, new party had to have notice within the limitations period of the action and knew or should have known that but for the a mistake concerning identity, they would have been named in the original pleadings.
58
General District Court
No Discovery as a general matter. Can compel a witness's attendance at trial through subpoena or subpoena duces tecum ("bring stuff with you") addressed to parties or non parties. Should file subpoena at least 15 days before trial. After that must show good cause.
59
Required Disclosures
None
60
Timing
21 days to respond to discovery requests
61
Maximum number of Interrogatories?
VA 30 ; Federal 25
62
Is there a rule number on depositions?
In VA No
In federal court you cannot take more than 10 or depose someone twice without court permission.
63
What is discoverable?
Material that is relevant to the subject matter of the pending actions. It must be reasonably calculated to lead to admissible evidence. Parties can seek documents even though they would not be admissible at trial.
64
Mary tells you her husband Pete was hit by a car driven by Dan and is severely injured. He is in the hospital and unconscious. Dan is a citizen of VA. The officer who investigated the accident tells Mary that there were two eyewitnesses. Both are Brazilian and are about to return home soon. What can Mary do to advance Pete's potential case against Dan?
1) Become Pete's fiduciary and sue Dan. Notice the witnesses deposition and subpoena them. Usually you need a court order to take a deposition within 21 days of filing but not if witnesses are about to leave the jurisdiction.
2) File a verified petition in circuit court where Dan resides, seeking perpetuation of testimony. Court can order even though no suit has been filed.
65
What happens if a party fails to properly respond to an RFA?
The court can take it as an admission.
66
In cases where P is seeking punitive damages, can P get information about D's net worth and gross earnings?
Yes, because it is relevant. In order to punish D we need to know how much money they have.
67
Can a party respond to an interrogatory by referring the other party to a document where the response can be found?
Yes, as long as it is done with sufficient detail.
68
Producing Documents
Documents produced must be presented as kept in the usual course of business and labeled to correspond with the categories in the request.
69
Capacity to Sue: Third Party Beneficiary
Can sue in his own right even if not mentioned in the K.
70
Joint Obligors and Tortfeasors
P can sue one of them, some of them, or all of them at her option. The fact that she is barred from suing one does not affect her right to sue the others. The fact that she settles with on, does not affect her right to sue others. (Although judgements against others can be reduced by amount received in settlement.)
71
Partnerships
Partners can be sued in their individual names. their doing business under names, or under the partnership name.
72
Estate or Asministrator
If the suit relates to the acts of the decedent than the estate or administrator can sue or be sued in representative capacity. If the suit relates to acts of the administrator individually, can sue in either capacity but must be sued in individual capacity.
73
Minors
As Plaintiff - can sue in own name by whoever is "next friend". Court will not disturb that choice unless there is a conflict of interest. A judgment in favor of a minor will not be disturbed for failure to sue through next friend. As Defendant - (a)sue the minor in own name. (b) Ask clerk or court to appoint guardian ad litem who must be preset throughout trial. - If no guardian ad litem is appointed but the minor has an attorney who has entered an appearance for them, the judgement will be valid. Exception: must have a guardian ad litem in a suit to encumber a minor's land.
74
Person with Disability
1) Fiduciary - If he has a substantial estate, there is usually a forma incompetency hearing which results in the appointment of a fiduciary to act for the mentally incompetent person. This person can be a committee or a guardian or conservator. If there is a fiduciary then suits by or against the disabled person will be by or against fiduciary.
If no fiduciary was appointed: If disabled person is Plaintiff - guardian sues, or if none, in their own name through his next friend. If disabled person is Defendant - Same as with minor.
75
Convicts
While a convict is in custody, they cannot be sued individually. Need to get a committee appointed. Technically, a convict who is in custody should not be able to sue on their own and should have a committee. However, filing suit waived the failure to have a committee appointed.
76
Death of Plaintiff or Defendant
If Plaintiff dies, then Plaintiff's executor will Motion to substitute himself in suit. If the party has some change in civil status (i.e., becomes mentally incapable after suit was filed) a representative can revive the suit in their name.
77
When must a counterclaim be filed?
In CC must file within 21 days. In GDC anytime before trial.
78
Counterclaims
A claim against an opposing party.
In VA a counterclaim is never compulsory. D has a choice whether to assert it, even if it is transactionally related.
If D does assert counterclaim, it does not have to be transactionally related to P's claim.
Can be for any claim under any theory that D has against P. A counter claim must be for all Plaintiff's jointly.
Does not need to be formally served. (Meaning you do not need a summons for it) Once it is served, P has 21 days to respond.
Counterclaim can exceed Plaintiff's claim. (But watch jurisdictional limits in GDC. If a counterclaim in a GDC court case exceeds $25,000.00, it cannot be asserted in GDC. It would be a separate case for CC.)
79
Hypo: A and B as joint Plaintiff's sues D to recover on a negotiable note. D files a counterclaim against A for personal injuries caused in a skateboard accident. A demurs. Results?
Demurer will be sustained. Counterclaim must be against all Plaintiff's jointly. Here the counter claim is against only one Plaintiff.
80
Cross-Claim
Claim against a co-party
81
Cross Claim Characteristics
Permissive, never compulsory.
Must be transactionally related to the underlying case. Can be asserted against one of several co-parties.
Historically you were required to get a summons and formally serve a cross claim. This may no longer be true. All you need to do is mail it. But there is no clear case law so may be safer to do it the old way. Cross claimant has 21 days to respond.
82
When must a cross claim be filed?
CC - 21 days after you are served with the original complaint. GDC- Any time before trial but be aware of the 25K limit.
83
Impleader
If a Defendant wants to join a third-party from whom they will seek indemnity or contribution from on the underlying claim against D, they would file a third-party complaint against the third-party. This is called an impleader.
The Third-Party complaint must be formally served on the third party. You would sent the third-party complaint, along with summons to the third party.
The Plaintiff then can file any claims they have against third-party, and third party can file claims against Plaintiff, as long as they arise from the same transaction or occurrence as the underlying case.
Defendant cannot implead a joint tortfeasor against whom Plaintiff would not be able to recover.
84
When must an impleader be filed?
CC - No later than 21 days after serving his first responsive pleading. After that they would need leave from court.
GDC - within 10 days after service or up until the trial date. Whichever is earlier.
85
Hypo: P is an employee of Deez Nutz construction company, which is installing a gas line for the city. The line explodes and P is injured. Apparently from the joint negligence of Deez Nutz Const. Co and the city. P sues the city for damages. The city wants to implead Deez Nutz Construction Company, can they do that?
NO. Because Plaintiff would not have been able to sue them because of workers comp.
86
Necessary Party
This is an absent party who should be made to join the case.
In VA the court can order the joinder of parties as the ends of justice require.A party is necessary if:
(a) the court cannot grant complete relief without the party.
(b) the absent party has an interest in the action that would be impaired or impeded OR
(c) the parties absence creates a substantial risk of multiple liability or inconsistent obligations.
87
What is an indispensable party?
A necessary party who cannot be joined to the case (e.g., no PJ over them).
The Court may decide to dismiss the entire case rather than proceed without the absentee. If the Court decides to dismiss, we call the absentee, indispensable.
In VA there is a statute which says there is no dismissal for non-joinder without first giving P an opportunity to join the party.
However there is no case law which says that a court cannot dismiss if it determines that an absentee who cannot be joined is indispensable.
88
Interpleader
This is when a holder of real property or personal property (including money) knows that there are others who claim a right to it. Rather than going through several suits, they can interplead and force everyone to litigate in one single proceeding.
GDC - Court can order interpleader as to property worth 25K or less or in any amount (even more than 25K) for earnest money deposit in a land sale.
Note - Here the Court cannot issue an injunction against pursuing other related proceedings.
CC - if amount in controversy is more than 25K. Here the court can issue an injunction against pursuing other related proceedings.
89
Intervention
This is when an absentee wants to join a pending case. ONLY IN CC There is never a right to intervene in state court.
Must make a motion to the court. It is at the discretion of the court. No time limit to intervene.
At discretion of court.
The claim or defense in an intervention MUST be related to the case.
90
Intervention - Process
1) File a petition for intervention
2) If granted, the intervenor-Plaintiff would file a complaint and formally serve it with process. Defending parties then respond as they would to any complaint.
3) If granted, Intervenor-Defendant files an answer in intervention
91
Class Actions
None in VA State Court
92
Wrongful Death
1) Action is brought by decedents personal representative
2) Beneficiaries are:
(a) Surviving Spouse, then kids, then grandkids
(b) If no one from (a) exists, then parents.
(c) if no parents, then siblings If no beneficiaries in any of these groups, then the damages pass to decedent's intestate takers. In all cases, jury decides who gets how much.
Note: Award can include another relative of Decedents household who who depended on Decedent for support.
93
Wrongful Death - Categories of Damages
Sorrow, anguish, loss of companionship Services and income provided Medical and funeral expenses Punitive damages for wanton or willful misconduct Last two must be stated separately in verdict.
94
What if victim is injured and brings an action for personal injuries before he dies, then he dies from the same injuries?
Substitute personal rep as Plaintiff and sue for wrongful death. Cannot recover pain and suffering of decedent as now it is a wrongful death. Can still recover punitive damages for wanton and willful misconduct. If D dies before judgment - No punitive from D's estate.
95
Declaratory Judgement
Litigant wants a declaration of rights in a situation where there is actual controversy.CC only Can seek damages or injunction.
Example: The state highway department paves over a portion of Sally's land as part of a new road. They do nothing to compensate sally. She can sue for declaration of compensation due.
96
Partition of Realty
CC Only (Concerns title or boundary of realty)
Two ways it can come up:
(a) co-owner wants to be free of the other owner
(b) a creditor of one of the co-owners who has a lien on the co-owners interest in the land, wants to have that portion of the land sold to satisfy debt.
Three methods: Partition in kind - Court divided the property among the various interested people.
Partition by allotment: Court lets one or more of the co-owners have the land and orders them to pay off the others. Before allotment, the court must determine that partition in kind cannot be practically made.
Partition by sale: If the other two are not feasible, the court will order the sale of the land, with co-owners to split proceeds. This is not favored.
97
Hypo: Era and Adam own land as joint tenants. Paula has an unsatisfied judgement against Era. She sues both Era and Adam in the county where the property is located and asks the court to partition the land and sell Era's interest to satisfy the debt. Adam files a demurer. How should the court rule?
Overrule it. Paula can seek a partition to satisfy the debt.
98
Hypo: Era and Adam own land as joint tenants. Paula has an unsatisfied judgement against Era. She sues both Era and Adam in the county where the property is located and asks the court to partition the land and sell Era's interest to satisfy the debt. Court rules that while land could be divided in kind and apportioned between Era and Adam it would instead order the sale of the whole land with Paula's Judgment to be satisfied from Era's half. Can court do this?
No. It cannot order the sale if partition in kind or allotment can practicably be made. Even if the land is more valuable if kept as a single tract, the court cannot order sale if division is possible.
99
Action to Establish Boundaries
CC Only (Concerns title or boundary to realty) An action to establish boundaries between contiguous adjoining lands. Non-tortious so no rents or damages. Order just describes the boundary.
100
Ejectment
CC Only Plaintiff must be out of possession of realty. They want to eject the person who is in possession of the land. The object is to determine title and obtain possession. P may also seek rents and profits in the same action. Defendant can get an offset for improvements he made to the property.
101
Unlawful Detainer
Less formal than ejectment. Does not determine title or boundaries to land.
Generally, this is about leaseholds.
A landlord sues to oust a tenant and recover possession of realty that the landlord clearly owns. P can also recover back rent and for damage of the property.Because it does not determine title to real property, this cause of action can be brought in GDC.
These cases are ok in GDC for any amount. Judgement does not bar later action for ejectment or trespass or later-accruing rents.
102
Detinue
Action to recover personal property or it's value and damages for detention.
Plaintiff must have an interest and have 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.
Pre-trial seizure: Plaintiff can get immediate possession of the property ex-parte (without notice to other side) by verified petition that demonstrates:
(a) description of the property and showing P's right to it
(b) the risk that the property will be damages or hidden or removed and by posting bond of twice the value of the property.
- Note - Sherriff CANNOT enter the Defendant's house to forcibly seize the property. Defendant can get the property back by posting bond of twice the value of the property and giving notice to P.
Available in GDC or CC if the amount of controversy is between $4,500 - 25K. Exclusive GDC jurisdiction if amount in controversy is under $4,500.00
103
Medical Malpractice
Within 30 days after a responsive pleading is filed, either party can request review by the medical malpractice review panel of judges, attorneys and healthcare providers. -
The panel is established by the VA Supreme Court.
The request stays the tort actions. The panel decides the case. The parties can accept the panel decision or resume the tort action. If they chose to resume the tort action, the panels decision IS ADMISSABLE into evidence but is not conclusive. -
Panel members can testify - The opinion or record before the panel must contain evidence of the standard of care or else it will not be admitted into evidence at trial. -
In discovery, you can ask panel members about their deliberative process.
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Enforcement of Arbitration Agreements and Awards
CC has jurisdiction to determine, upon a timely petition, whether there is an arbitration agreement and order the parties to arbitrate the dispute.
If the K is silent on arbitration, the Court will determine whether the dispute is subject to arbitration.
Any party to an arbitration can petition the CC to confirm an arbitration award into a judgement or to vacate or modify the award but only on very limited grounds.
An arbitration award can be vacated for fraud, corruption, undue influence on the arbitrator, or if the arbitrator acted beyond power or improperly to the prejudice of a party or improper refusal to postpone arbitration hearing or to hear material evidence.
105
Statute of Limitations
Generally the statute begins to run from the date of injury or breach.
Exceptions:
1) Fraud, mistake, undue influence: cause of action accrues when P discovered the harm (or when a reasonable person would have discovered the harm)
2) Malicious Prosecution: Accrues when the underlying case ends.
3) Contribution: Accrues when one pays more than their fair share.
4) Malpractice: Through continuous treatment/service. - Dentist commits' malpractice in 2015. He undertakes to fix it in 2016 and 2017. P still having pain in 2018. P sues in 2018 which is beyond statute if statute began to run in 2015. Is P barred? No because the cause of action accrues at the end of related course of treatment.
106
SOL Periods - Personal Injury
2 Years
107
SOL - Non Physical Torts (e.g., malicious prosecution)
2 Years
108
SOL - Defamation
1 Year
109
SOL - Property Damage
5 years. PD for sales covered under UCC - 4 years
110
SOL Fraud
2 years
111
SOL Wrongful Death
2 years from death Note - Claim is barred if decedent was injured more than two years before his death and died from those injuries without ever bringing suit.
112
SOL - Written Contracts
5 years
113
SOL Unwritten Contracts
3 years
114
SOL - Unlawful Detainer
3 years
115
How does D raise statute of limitation?
Special Plea Cannot raise through a demurer because a demurer cannot inject new facts.
116
Does D have to plead the specific statute?
No, just has to allege that the cause of action is barred.
117
Who has the burden of proof concerning statute?
Defendant
118
Tolling the Statute
Minors cause of actions are tolled until the minor is 18 or is judicially emancipated. - Note - This does not apply to medical malpractice cases. Statute runs after 2 years, despite the age of the child.
119
P files suit one week before the statute runs, and has properly served D with process. Two weeks later, P takes a nonsuit (voluntarily dismisses). What is statute of limitations?
Right to refile within 6 months or or limitations period, whichever is longer.
120
Tolling SOL - Unknown Owner or Operator of a Motor Vehicle
A case may be brought against an unknown owner or operator of a motor vehicle as "Doe" (John or Mary) and the statute of limitations will be tolled for 3 years to give the Plaintiff a chance to discover the Defendant's identity.
121
Tolling SOL - Counterclaim & Cross Claim
P's filing of his suit, tolls the SOL for counterclaims and cross claims that arise from the same transaction or occurrence.
122
What is a nonsuit?
Plaintiff decides to dismiss voluntarily without prejudice. Only one nonsuit as a matter of right. Others can be allowed by the court with notice to the other parties. Party taking a nonsuit must inform the court of all previous nonsuits and that number must be reflected in the court order.
123
Timing of Nonsuit
P has a right to a nonsuit once without prejudice unless any of these are true:
1) Jury is retired from bar
2) Nonjury case submitted to court for a decision
3) Motion to strike evidence is granted
4) Demurrer or special plea is fully argued and awaiting a decision. If Defendant files a counterclaim, cross claim etc.
Plaintiff can take a nonsuit only if D agrees or the claim can be adjudicated independently.
124
After taking a nonsuit, P wants to refile against same Defendant, where must they refile?
Same court unless it lacks jurisdiction, or venue, or unless good cause is shown to litigate somewhere else.
125
Default & Default Judgement
Party is in default if they fail to respond to an affirmative pleading within the allowed time.
The court enters default automatically.
If D is in default, they waive notice to further proceedings.
However notice will be given to counsel of record or posted service.They also waive jury trial at further proceedings.
126
What happens after D defaults?
P moves for entry of Default Judgement - If damages are liquidated, the Judge will enter a judgement for that amount. - If damages are not liquidated, P may move for a hearing on damages. P can request a jury for this hearing.
127
What happens if the Defendant Defaults, plaintiff requests a hearing on the damages, and Defendant then shows up to that hearing and wants to introduce evidence?
He is allowed to appear and litigate damages only. Cannot litigate liability. Defendant can cross examine witnesses and offer evidence on damages only.
128
Summary Judgement
No genuine dispute of material fact and the moving party is entitled to a judgement as a matter of law.
Any party can move for summary judgement. If all parties agree, a motion for summary judgement can be based on deposition testimony.
A party cannot base their motion on affidavits
A conflict in pleadings regarding a material fact, creates a triable issue. So if pleadings show a dispute in material facts, the court may grant summary judgement.
129
Jury Trial
Circuit Court Only
When there are some legal issues to be tried and some equitable issues, the legal issues will be tried first in front of the jury and then the equity issues by the judge.
The judge is bound by the decision of the judge Must file a written demand within 10 days after service of the last pleading raising the jury triable issues.
If there is a right to a jury but no party demands it, it is a bench trial unless court orders jury.
130
Jury Size
More than 25K - 7 people
Less than 25K - 5 people
If parties consent, a 3 person jury may be used.
131
Challenging a Potential Juror for Cause
(a) When a potential juror is related to a party,
(b) has an interest in the case being tried, or
(c) has expressed an opinion or bias in the matter, he can be stricken from the panel for cause.
It is reversible error for a court to force a party to use one of there preemptory strikes, when the juror should be stricken for cause. Each side is entitled to unlimited for cause challenges.
132
Preemptory Challenges
Each side gets 3 preemptory challenges
Preemptory challenges cannot be based on race or gender.
133
Can the judge allow the jury to view premises?
Yes, if necessary to a just adjudication
134
Can the judge allow pleadings into the jury room?
No
135
Can the judge allow exhibits in the jury room?
Yes at judge's discretion
136
If a witness who was excluded (sequestered) from the courtroom sneaks back in to the courtroom and listens to evidence, can the judge nonetheless allow the witness to testify?
Yes in court's discretion.
137
Juries & Equitable Causes of Actions
Juries can be used concerning equitable causes of action in certain situations. Sometimes the juries decision will be binding on the judge and other times merely advisory.
- Any party has the right to demand a jury to decide facts of a special plea. This will be binding. -
The court may on its own motion refer an issue out of chancery. Probably needs to make a finding of conflicting evidence. Advisory. -
Any party may file an affidavit that the case will be rendered doubtful by conflicting evidence of another party, in which case the court may refer issues out of chancery.
An advisory jury is to "aid the conscience" of the judge, It could be an abuse of discretion if the judge disregards the finding of the jury if supported by substantial evidence.
138
Presentation of Evidence at Trial
GDC - Testimony given orally - In a PI case may present evidence of treatment of the injury by a health care provider's report or by hospital records.
Medical Report may be admitted if intent to use report was given to the other party at least 10 days in advance of trial.
Health Care Providers report must be accompanied by a sworn statement that the party was treated by her and that the information contained in the report is true and accurate and fully describes the injury. As well as that any statement of costs in the report is true and accurate.
Hospital Records may be admitted if they are accompanied by a sworn statement by the person who had custody of the records, that the records are true and accurate.
Property Damage: - if PD is more than $2,500.00 in either Circuit or GDC evidence of such damage may be admitted by an itemized estimate or appraisal of the person who repaired the vehicle.
The estimate must include a statement under oath that (1) he is the motor vehicle repair person qualified to determine the amount of damages (2) length of time that he has done such work and (3) the name and address of his employer. - A copy of the estimate must be mailed or delivered to adverse party at least 7 days before trial. If not done, it cannot be admitted unless the other party agrees. If the PD is less than $2,500 no need to give it to the other side in advance of trial.
139
Trial of Equitable Cause of Action
Evidence is usually by deposition transcript with no live testimony. Can be oral if the court desires. Will be oral any time a jury is used.
140
What is oral presentation of testimony called?
Ore tenus
141
What is a Motion to Strike Evidence
Essentially same as a JMOL Defendant would raise it at the end of P's case saying that looking at the evidence in a light most favorable to the nonmoving party, the Plaintiff has failed to prove their case.
The court will grant the motion if a jury could only properly find one way. Only when it is conclusively apparent that Plaintiff has proven no cause of action.
If a judge feels the standard is met, they would strike the evidence and grant enter summary judgement.
142
Jury Verdict
Must be unanimous, unless the parties stipulate otherwise.If it's not unanimous, hung jury and mistrial
143
When coming to the verdict, can the jury members all set forth their own damage figures and then divide by the number of jurors?
No. This is called a quotient verdict. They cannot do this.
They must come to the verdict as a product of deliberation.
Hard to prove a quotient verdict because the jurors can be asked about overt misconduct, but not about subjective thought process.
144
Rehearing in General District Court
You can ask for a rehearing, no later than 30 days after the entry of a judgement.
Court must rule on the Motion no later than 45 days of entry of the judgement,
145
Circuit Court - 21 Day Rule
Every final judgement or decree remains in the breast of the court for 21 days days after entry.
During this period, the court may suspend, vacate, or modify a judgement. If the court doesn't suspend, vacate, or modify within the 21 days, they must deny it.
Exception: Fraud. They can vacate a judgement or decree on the basis of fraud for 2 years.
146
Motion to Set Aside Verdict As Contrary to the Evidence
The court doesn't need to give a new trial in this case if their is sufficient evident for the court to decide the case on the merits.
Difference from Federal Law - In VA is not a requirement that the party had to move to strike the evidence first.
147
Motion for New Trial
Must be filed no later than 21 days after judgment
148
Grounds for a new trial
a) Prejudicial error or misconduct by Court
b) Misconduct of party or attorney or juror or third party
c) new evidence has been discovered
d) unfair surprise by evidence presented at trial and the evidence has a material outcome of the trial e) excessive or inadequate damages
149
A requirenment for being granted a new trial based on discovery of new evidence
The party making the motion has to allege that the failure to present the evidence at trial was not as a result of his lack of due diligence. Must be truly new evidence and not just cumulative evidence presented at trial.
150
Test for new trial because verdict is too high or low?
Does the damages figure shock the conscience?
A judge can order a new trial on all of the issues if damages is not separable from liability.
The judge can also order a new trial on damaged only if damages is well established.
Remittitur: The judge can also tell the Plaintiff that they can accept a reduced award (which the judge would set) or that she will order a new trial.
Additur: Same goes vice versa. If the verdict was too low.
The judge can set a higher amount and give the Defendant the option of paying the higher amount vs. doing new trial.
(In federal court remittitur is allowed but additur is not permitted as it violated seventh amendment.)
151
Bill of Review
This applies to equity causes of action only.
A party can seek review of final decree for up to 6 months after entry. (Trumps 21 day rule)
Grounds:- Correct errors apparent on face of record - New Evidence
152
Final Judgement Rule
You can only appeal a final judgement.
153
Pre-trial Interlocutory Ruling
The Court may certify a pretrial interlocutory ruling for appeal to the appropriate appellate court.
A party would have to request it and the court must certify if:
a) There is substancial ground for difference of opinion
b) There is no clear Virginia Appellate precedant
c) Determination of the issues will be dispositive of a material aspect of the case and
d) The court and the parties agree that it is in the parties best interest to seek an interlocutory review.
154
Cases involving multiple parties - Partial Final Judgement
In cases involving multiple parties.
A final partial judgement as to one may be appealable, even though it is not a final judgement for the whole case. P sues D1 & D2.
Court enters a judgment in the claim against D2.
This is not a final judgement because D1's claim has not been resolved yet.
The loser on the ruling can appeal if:
a) the trial court enters "partial final judgement" on the claims.
b) the interests involved are separate and distinct from those remaining.
c) results of appeal on the partial final judgement will not affect the decision in the remaining causes of action. and
d) Results of the remaining issues cannot affect disposition of the cause of action determined in the partial final judgment.
155
Appealing from GDC to CC
No later than 10 days after entry of judgment Post bond and pay writ of tax and costs in GDC no later than 30 days of judgment. (10 days in unlawful detainer cases) Seeking a rehearing does not alter this time table. CC - hears cases De-Novo
156
CC Appeal to Court of Appeals
There is now a right of appeal. - File a notice of appeal - No later than 30 days after entry of final judgement. - File a bond for costs - File transcript or written statement of facts.
