Flashcards in VA Civil Procedure Deck (180):
Statute of limitations for personal injury in VA?
two years from when injury occurred
if due to foreign object from medical malpractice - extended to three years
Statute of limitations for defamation in VA?
Statute of limitations for fraud in VA?
within two years from discovery (known or should have known)
Statute of limitations for wrongful death in VA?
two years from time of death
Statute of limitations for written contracts in VA?
Statute of limitations for oral contracts in VA?
Statute of limitations for claims under the UCC in VA?
Statute of limitations for unlawful entry or detainer in VA?
Statute of limitations for contracts governed by another state in VA?
shorter of the foreign or Virginia limitation period
Statute of limitations for right of contribution between joint tortfeasors in VA?
three years - from time of payment
Decision of the State Corporation Commission may be appeal to what court in VA?
VA Supreme Court
If the trial judge in a civil action has granted a motion to strike the evidence, the judge shall _____.
Enter summary judgment or partial judgment in conformity
May not give a jury instruction directing the verdict of the jury
What is the remedy designed to cure an award of damages that is grossly excessive without the necessity of a new trial or an appeal?
Remedy of remittitur
If inadequate, then the court may required defendant to pay more (referred to as additur)
Service of process in a civil action is deemed timely if made within ___ of the commencement of the action.
A suit against the Commonwealth will be barred if not brought within?
18 months after filing the notice of claim.
Can summary judgment as to liability be entered if there is genuine issues as to the amount of damages?
A bill of review may be filed within ____ after entry of the decree to be reviewed?
A person serving as a juror cannot serve as a jury for the next ___.
When must an appellant file an opening brief after receiving the certificate of appeal?
40 days for the appellant's brief
appellee's brief is due within 25 days from the filing of the appellant's brief
Appellant's reply brief is 14 days
Oral argument on appeal before the VA Court of Appeals for a party shall not exceed
In a civil case that does not exceed $25,000 a jury of ___ is required.
In a civil case that exceeds $25,000 a jury of ___ is required.
In a civil case, regardless of the amount, if the parties agree how many jurors may be used?
Time periods for briefs on appeal?
Appellant's reply brief
** may be extended if agreed to by all parties and a justice of the Supreme Court agrees
In determining the amount in controversy in a civil action, are interest and attorney's fees stipulated in an instrument exclude?
When may clerical mistakes in judgments or in the recorded by corrected by court?
If service has been waived on request, the out-of-state defendant must file responsive pleadings to the complaint within ___.
90 days after the date when the request for waiver was sent
What is the most appropriate motion for a complaining party to take when answers in a defensive pleading are insufficient?
Motion to strike.
Purpose of VA long arm statute
Confer personal jurisdiction over nonresidents as to certain causes of action arising from activities engaged in by them or resulting from the ownership of property by them in VA.
When does the statute of limitation toll for counterclaims or cross-claims arising out of the same transaction or occurrence?
Upon the plaintiff's filing the complaint.
What is an interlocutory appeal?
Appeal of a nonfinal order and for which an appeal as of right does not exist
In VA, what is the limit on the number of interrogatories?
30 written interrogatories
When a 5-person jury is used, how many jurors must be empaneled?
11 to allow each side 3 peremptory challenges
A special gran jury consists of not less than ___ or more than __ persons.
7 and 11
How long must a person be a residence of VA to serve on a grand jury?
In VA, may a party join a claim in tort with one in contract?
Yes, provided that the tort claim and contract claim arise out of the same transaction or occurence.
In VA, is a general denial of the entire complaint allowed?
Must respond to each paragraph.
How is a three-person jury selected?
Each side selects one juror
Third juror is selected by both sides, and if they cannot agree then the judge
To perfect an appeal of a divorce decree what must be done?
- appeal from a divorce decree is an appeal of right to the VA Court of Appeals.
- must file a notice of appeal with the circuit clerk and indicate whether a transcript of statement of incidents of the trial is to be filed
- appellant must also file an appeal bond, filing fee $50, and certificate of names of parties and copy has been mailed
How long do you have to file a notice of appeal?
copies must delivered to all opposing parties at same time notice of appeal is filed with the trial court
When must the appeal bond be filed?
Simultaneously with the notice of appeal.
- filing fee may be late up to 10 days
What rulings will be considered on appeal?
Only those objected to, with the grounds for objection, in the trial court.
except where there is good cause shown
How are rulings of the trial court brought to the attention of the appeal court?
Appellant's opening brief, which must include:
1) brief statement of the nature of the case, 2) statement of question presented, 3) statement of facts, 4) statement of principals of law, and 5) short conclusion.
When does the doctrine of res judicata apply?
Prevents parties from relitigating same cause of action when a final judgment was previously entered
When does collateral estoppel apply?
Prevents parties to a prior action from litigating in a subsequent action, any factual issue that was actually litigated and essential to a valid final judgment.
Personal jurisdiction requires?
1) satisfy a statute to get personal jurisdiction
2) satisfy constitutional requirements
General personal jurisdiction requires what?
Defendant is served with process instate or resides in VA.
Once general jurisdiction can sue Defendant in VA on a claim that arose anywhere.
What is the constitutional requirement for personal jurisdiction?
minimum contact with forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
contact (purposeful availment and foreseeability)
relatedness (general v. specific)
fairness (conveience, state's interest, plaintiff's interest)
To have sufficient contact with a forum for personal jurisdiction, what is the test used?
Purposeful availment by defendant's voluntary act
foreseeability that defendant would be used in state
Circuit courts can hear cases involving monetary claims or claims to specific personal property involving more than?
more than $4,500
Where must a claim of more than $25,000 be brought in VA?
Can injunctions be filed in General district court?
No, injunction and equity must go to the circuit court.
Can general district court hear a distress claim for rent due?
Yes, regardless of money involved.
Can a general district court hear a claim to oust defendant from personal property?
Yes, regardless of money involved.
In determining the amount in controversy, are the attorney's fees and interests included?
No, not included.
If defendant appeals a judgment from General district court to circuit court, can the plaintiff seek leave to amend to increase his claim?
Yes, may increase claim to over $25,000.
What is category A venue?
local actions (involving land)
writs mandamus, prohibition or certiorari
In circuit court when must venue be objected to?
Within 21 days from service of process, or it is waived.
In general district court, when may venue be objected to?
ok to object to venue on or before the day of trial
If all the defendants are non-residents, where is venue proper?
Where plaintiff resides.
Service of process in a general district court is accomplished by what?
1) civil warrant
2) notice for motion for judgment (complaint)
Service of process in a circuit court is accomplished by what?
Before substituted services is used, what must be done?
personal service must have been tired and be unavailable
For substituted service, what is required?
1) defendant's usual abode
2) member of defendant's family received it and is at least 16 and lives at the same abode
3) person receiving substituted service is told the purpose for service
If a document should be annexed to a pleading and is not, what can the other party do?
motion craving oyer - demand that party filing pleading must produce document and annex it to the pleading.
Is alternative pleading allowed in Virginia?
yes, can include inconsistent allegations
pleading must be in numbered paragraphs
What is the return date for general district court?
when defendant must appear
cannot be more than 60 days or fewer than 5 days from service of process
In general district court, does the defendant file an responsive pleading?
Generally no, unless moves for grounds of defense
- can file a bill of particulars to get more details from plaintiff
In the complaint, must the plaintiff include an allegation of jurisdiction and venue?
No to both.
Must state facts in numbered paragraphs.
In the complaint, in the statement of relief desired, what damages must be separately listed?
Any punitive damages
If service has been waived on request, the in-state defendant must file responsive pleadings to the complaint within ___.
out-of-state is 90 days.
On appeal from general district court to circuit court, what is the standard of review?
Motion to join a party must be filed within ___.
21 day after service of complaint.
Under Wigmore rule, how are confessions determined?
If requested by accused, the court determines the admissibility out of hearing of the jury.
Voluntariness of confession is a factual question and VA bears the burden of proving voluntariness by a preponderance of the evidence.
If court rules confession is admissible, then jury has duty to consider voluntariness only insofar as it affects the weight and creditability of the confession
Does a defendant waive his privilege against self-incrimination if he takes the stand to testify about the voluntariness of a confession?
No, not a waiver of the privilege.
Where expert witnesses are testifying in a civil action, the court may allow each party to have how many of its expert witness remain in the courtroom?
Define draft under Article 3 of the UCC?
Draft is a written and signed instrument by one party, drawer, to another person, drawee, ordering that the drawee pay money to a third party, payee or bearer.
If a party demanded a trial by jury for only some of the issues, any other party may demand a jury trial for the remaining issues if filed?
10 days after service of the demand.
What is the defense called for a divorce based on fault if there is forgiveness of a martial offense constituting a divorce?
All final judgments shall remain under the control of the trial court and subject to modification, vacated, or suspended for ____.
21 days after the date of entry.
Must all verdicts be unanimous in civil trials?
What is the criminal statute of limitations for the attempt to produce abortion?
What is the criminal statute of limitations for petit larceny?
What is the criminal statute of limitations for the false statements to obtain benefits under VA unemployment compensation act?
What is the criminal statute of limitations for misdemeanors?
What is republication by codicil?
Valid execution of a codicil that makes express reference to the revoked will would cause the will to be revived.
How many Supreme Court justices are there in VA?
7 justices that serve a 12 year term.
If plaintiff is a minor, the cause of action accrues against the health care provider, is tolled until the minor is over ____.
8 years old.
What much notice must the Virginia Court of Appeals give to the parties regarding oral arguments?
How many justices sit on the Virginia Court of Appeals?
11, elected for 8-year terms.
How many districts are there in Virginia?
When children have a statutory duty to provide for parents, there is an exception if proven by what standard if the parent deserted, neglected, abused or did not support the child prior to emancipation.
clear and convincing
Self-employment tax must be paid if income exceeds what?
Penalties are imposed if a person fails to pay what percentage of tax due for the year?
Does Virginia recognize common law marriage?
Yes, if common law marriage in another state.
Cannot recognized common law marriages in Va.
The scope of discovery in VA state court is ____ than Federal Rule 26(b).
Courts not of record are called what?
General district courts.
Can a settlement agreement provide for child support under the children reach 21, when the statutory language provides judicial child support until 18?
How much notice must be provided to terminate a month-to-month tenancy?
30 days prior to the next rent due date.
Appeal from a court not of record to circuit court lies as a matter of right, if the amount involves is more than ___.
Who must sign the return of an indictment?
Foreman of the grand jury.
Does the crime of terrorism merge with murder?
What is the maximum number of witness that a party may depose during a case?
No limit. Court can add limits if for good cause.
Can a magistrate commit arrested persons to jail?
Can a magistrate admit arrested persons to bail?
Does filing a motion for a bill of particulars involve a general appearance?
Yes, general appearance waives the challenge to personal jurisdiction.
To argue that service was improper, what can defendant do?
File a motion to quash service.
What can be challenged in a demurrer?
Misjoinder of claims, lack of subject matter jurisdiction, and failure to state a cause of action.
Can personal jurisdiction be challenged in a demurrer?
No, need a special appearance to challenge.
If a demurrer is sustained, what does the court do?
sustains without prejudice and sets time for amendment
If defendant files an answer before a demurrer, what is the result?
Cannot file the demurrer, lost right.
Need court permission.
What is a special plea?
Affirmative defense that must be raised in answer or separate motion with answer
Once a court overrules a demurrer, how long does a defendant have to file an answer?
21 days or as the court directs.
When is a sworn statement required?
raise any of the following defenses
1) lack of genuineness of handwriting
2) lack of corporation or partnership or agency status
3) lack of ownership or operation of property or instrument
If the defendant raises a new matter in response to complaint, then does plaintiff have to file anything?
Only is expressly requested by defendant
needs to file a reply within 21 days.
challenge by motion to strike the pleading (not a demurrer)
Is there a right to amend complaints in Virginia?
No, need court permission (generally liberally allowed)
In federal court, do not need court permission
Time for responding to interrogatories?
21 days in VA
30 days in Federal court
Number of interrogatories permitted?
30 in VA
25 in federal court
Number of depositions?
no limit - VA
10, more with court permission, in Federal Court
In Virginia are counterclaims compulsory?
No. Defendant has choice to assert it, even it same transaction and occurrence.
If asserted, the counterclaim does not need to relate to same transaction and occurrence
A and B sue D to recover on a note. D fails a counterclaim against A for personal injuries. A demurs. Results?
Demurrer will be sustained, because the counterclaim has to be against all plaintiffs.
In general district court, can the defendant raise a counterclaim that exceeds $25,000?
No. Counterclaim cannot be asserted in general district court.
Are cross-claims compulsory?
No. VA and Federal are the same.
Cross-claims are against co-parties and are permissive.
Must be transactionally related
What does the defendant file when the want to join a third party?
Third party complaint to make an impleader
If a plaintiff sues for personal injuries and later dies after bringing action, can the plaintiff's representative bring a wrongful death action to recover pain and suffering?
No. Cannot recover for the pain and suffering.
Can be a personal representative and continue the action.
To bring an action for ejection, the plaintiff must be ___.
Out of possession.
Action is try the title and obtain possession.
What is a nonsuit?
When plaintiff decides to drop a lawsuit. Must be timely made.
Plaintiff has right to one non-suit, must seek leave of court for additional non-suits.
When may a nonsuit be taken by plaintiff?
1) before jury retires from the bar
2) before case is submitted to court for a decision
3) before any motion to strike the evidence is granted
4) before a demurrer or special plea is fully argued and awaiting a decision
Can a plaintiff take a non-suit if the jury deadlocks?
Yes, jury is not deliberating.
After taking a non-suit, where must plaintiff retry?
Same court, unless court lacks jurisdiction or venue
Could also file in federal court.
Within six months or if still within the statute of limitations period
What happens upon default?
defendant waives further proceedings, but counsel may still receive notice.
plaintiff moves for entry of default judgment and hearing on damages (unless liquidated) - defendant limited to participating damage hearing
Motion to strike the evidence is similar to what in federal practice?
Motion for judgment as a matter of law
If defendant wishes to object to nonsuit, what must the defendant do?
Object to the non-suit and seek appeal of grant of non-suit
Can a defendant remove an action brought in general district court to circuit court?
No - practice abolished in 2007
Instead party can appeal ruling of general district court to circuit court.
How does a party transfer a case from General district court to circuit court in VA?
No transfer, but can appeal the general district court decision to circuit court.
In general district court, a statement as to damages to a motor vehicle is proper when?
person made statement under oath
1) repair person qualified to determine the amount of damages
2) name of business
3) length of time engaged in repair business
*** 7 day notice if more than $2500
In general district court, if a plaintiff is going to use a statement from a repair shop on damages to motor vehicle how much notice must be given?
If more than $2500, then 7 days before trial, unless opposing counsel consents.
In general district court, how much notice is required to use a written medical report?
10 days prior to trial
Physician must swear:
1) he treated injured party
2) information is true and accurately describes injury
3) statement of cost is true and accurate
In general district court, if emergency room records are submitted, what else needs to be shown?
Proper custody of records.
Can a defendant appeal a denial of a demurrer?
No. demurrer is to challenge legal sufficiency of plaintiff's pleadings.
Can only appeal if final judgment is entered (denial of demurrer dismisses case).
How can a defendant challenge the taking of a nonsuit by a plaintiff?
1) filing a written petition for appeal (30 days to file notice with clerk of trial court and 3 months to file written petition with the Supreme Court); or
2) move for trial court to reconsider (21 days)
Is the granting of a nonsuit an appealable issue?
Yes because it is a final order that be appealed if there is a dispute existing as to whether the trial court properly granted the motion for a nonsuit
What does a declaratory action seek to do?
obtain a declaration of rights with or without consequential relief
remedy in equity
Can a party file a complaint in general district court alleging an unlawful detainer?
Yes. - Could also be filed in circuit court.
Challenges right of possession only (never challenges title)
Can an unlawful detainer action be brought to challenge title and possession?
No. Only applies to challenges of possession.
What is the common dispute to bring an unlawful detainer action?
challenges possession not title
Can an unlawful detainer action be brought to challenge title?
No - only challenges possession.
Is partition an appropriate action for a party seeking sole title and possession to property?
Partition is available for joint owners.
What can be challenged in a bill to quiet title?
Title to land.
Often used by adverse possessors.
Can a party bring a bill to quiet title as a substitute for an ejectment action?
No. Suit to quiet title may not be used as a substitute for an action in ejectment
Can title and possession be challenged by an action for ejectment?
Yes. Allows a challenge to try title and obtain possession
Can a party who is in possession seek an action for ejectment?
No. Party must be out of possession to bring a cause of action for ejectment.
What is the best cause of action to try title and possession?
Ejectment. Can only be filed in circuit courts.
In an action for ejectment, can improvements made to the land by defendant be set off?
Plaintiff can also recover rents and profits
In what court can a party bring an action to challenge the establishment of boundaries?
How can a plaintiff obtain immediate possession of personal property?
Plaintiff may be granted immediate possession pendente lite on application to to judge or magistrate presenting a verified petition:
1) describing property
2) describing basis of plaintiff's claim to property
3) alleging one or more grounds in pretrial seizure statute
What are grounds prescribed in the pretrial seizure statute to allow plaintiff to be awarded immediate possession of personal property?
a) defendant is a foreign corporation or about to remove the property out of state
b) property will be sold, removed, destroyed, or damaged if left in defendant's possession
Where can an appeal of a final decree of a circuit court involving divorce be taken in VA?
Court of appeals. No jurisdiction to appeal to Supreme Court.
Is it proper for a plaintiff not to give the defendant's attorney notice of deposition when the defendant has not made an appearance or employ counsel?
- Yes. party must normally deliver notice or mail copies of each deposition notice to every other party.
- Party in default is not entitled to notice, except for divorce cases.
- Error that can be reversed on appeal to court of appeals.
What is impacted when the defendant is served with process in state versus out of state in a divorce case, and the defendant thereafter fails to make an appearance?
In-state defendant - still entitled to notice
Out-of-state defendant - notice not required
- No notice is required to any defendant who is served with process out of state and who fails to timely appear and respond.
What can evidence obtained from depositions be used in a summary judgment motion in VA?
if all parties agree that the depositions may be used.
When a party is in default are they allowed to object to evidence admitted during trial?
Yes if the evidence goes the amount of damages.
applies only in circuit court; in general district court this would be a waiver
Can a defendant who defaults prevail on a claim that plaintiff was contributory negligent?
No - contributory negligence is an affirmative defense that must be plead. A defaulting defendant does not make any pleas.
Which party may move for summary judgment?
Either party may move for summary judgment after the parties are at issue.
Rarely granted in VA.
Cannot be based on any evidence (only pleadings), unless all the parties agree
Is a petition to remove to a federal court a response pleading in VA circuit court?
No - not a responsive pleading.
If another responsive pleading is filed with the special appearance to challenge personal jurisdiction, the defendant is deemed to ___.
have made a general appearance.
Watch for filing a counterclaim with a motion to quash.
If a partition cannot be made and joint owner wants to keep property can they purchase the property at a sale?
Yes if it is for fair market value.
Can a plaintiff require a defendant to disclose if they have insurance and obtain a copy?
yes through discovery - production of documents within control of defendant
What actions can be taken ex parte to obtain goods in the possession of another?
- temporary restraining order
- petition in detinue for pre-trial seizure
- petition for attachment
Who has standing to challenge a private nuisance?
Owner or occupier of premises
Must suffer a special or peculiar damage that is unique and different from public at large
Statute of limitations to damage to property?
When a nuisance is continuous and gradually gets worst, will laches prevent a plaintiff from seeking equitable relief?
What is the statute of limitation period for nuisance claims?
use the damage to property of 5 years.
If a contract is not appended to a complaint should the defendant file both a demurrer and a motion craving oyer?
First file the motion craving oyer to get the document attached.
Second file the demurrer to test sufficient of pleadings.
If parties have an arbitration clause and one party brings an action in circuit court, is a special plea required by the defendant?
No special plea, any party can file a motion to compel arbitration.
Stays court proceeding pending arbitration.
If parties have an arbitration clause and one party bring an action in circuit court, and circuit court stays case pending arbitration, does the court retain jurisdiction?
Yes. Retains jurisdiction to decide any disputes and enter/vacate the award
How long does a party have to seek vacation or modification of an arbitration award?
90 days from award (or 90 days from discovery of fraud)
Once a court enters an arbitration award, what can the aggrieved party do?
May appeal the court decision
Do parties have to relitigate a claim if awarded damages from an arbitration ruling?
No. Party should make motion to enforce award and treated like any other judgment.