Virginia Procedure Flashcards
1
Q
Under the Virginia long-arm statute, jurisdiction over a non-resident can be exercised if:
A
- The out of state tortfeasor caused tortious injury in the Commonwealth by an act or omission outside the Commonwealth;
- If the non-resident regularly does or solicits business, or
- Engages in any other persistent course of conduct, or
- Derives substantial revenue from goods used or consumed or services rendered in the Commonwealth.
2
Q
A party will waive its right to object to personal jurisdiction by …
A
entering a general appearance in the case.
3
Q
Filing an answer is/is not a general appearance, which will result in waiving personal jurisdiction if done before objecting.
A
IS
4
Q
Discovery, if ordered by the court to adjudicate any objection to personal jurisdiction (does/does not) of itself waive personal jurisdiciton.
A
DOES NOT
5
Q
When must personal jurisdiciton be challenged?
A
Any time (unless waived!)
6
Q
Can a case be dismissed for improper venue?
A
NO – in Virginia, venue is not jurisdictional and no case shall be dismissed on that basis.
7
Q
A defendant must file an objection to venue within…
A
21 days of service of process upon the defendant.
8
Q
Any objection to venue filed should include:
A
where the defendant believes venue to be proper.
9
Q
A motion objecting to venue should be heard by the court…
A
prompty.
10
Q
A demurrer challenges the…
A
legal sufficiency of a complaint (or counterclaim, crossclaim, or 3rd party claim).
11
Q
A complaint filed by an improper party cannot…
A
legally stand.
12
Q
Every action for wrongful death must be filed in the name of…
A
the personal representative, not the deceased.
13
Q
Filing a suit in the name of a deceased is a…
A
legal nullity, and therefore any attempt to amend or substitute the proper party should be denied.
14
Q
In Virginia, a wrongful death action must be filed within…
A
2 years of the date of death (not 2 years from the accident).
15
Q
Can a motion to amend be made orally?
A
Yes.
16
Q
When a motion to amend is granted upon demurrer or oral motion, an amended pleading must be filed within…
A
21 days after leave to amend is granted, or in such time as the court may prescribe.
17
Q
Leave to amend is discretionary and is to be….
A
liberally granted to attain the ends of justice.
18
Q
A demurrer, as a responsive pleading in the circuit court, must be filed…
A
in writing, within 21 days after service of process unless the trial judge grants leave for additional time.
19
Q
A demurrer must state…
A
specific grounds of its challenge.
20
Q
In ruling on a demurrer, the trial judge may only look to…
A
the face of the plaintiff’s pleading.
21
Q
A GDC judgment can be appealed within…
A
10 days.
22
Q
The GDC has the authority to reopen a matter on a motion made within….
A
30 days from the judgment to within 45 days of the judgment.
23
Q
A Court can vacate a judgment on the ground of fraud on the court, so long as a motion is made within….
A
2 years of the date of the judgment.
24
Q
In the circuit court, a defaulting defendant is allowed to participate in a default judgment hearing, and they may fully participate in the….
A
damages hearing.
25
(TRUE/FALSE): The Circuit Court can grant leave to a defendant in default to file late responsive pleadings and cure their default.
TRUE.
26
Virginia has long recognized a cause of action for the wrongful death of a person under....
the wrongful death statute.
27
The Virginia wrongful death statute sets forth...
the statuatory beneficiaries who are entitled to recover for the wrongful death of another.
28
The beneficiaries under the VA wrongful death statute are successive in nature, meaning that....
no member of a class is entitled to compensation if a member of any of the preceding classes is alive.
29
The date by which a claim will be barred depends on when...
the cause of action asserted accrued and the governing statute of limitation.
30
The SoL for the breach of an oral contract is....
3 years.
31
The statute of limitations for a breach of contract begins to accrue when....
the alleged breach occurs.
32
The SoL for written contracts under Virginia law is....
5 years.
33
In actions upon a contract that is in writing and not signed by the party to be charged, the action must be brought within....
3 years after the cause of action accrued.
34
The SoL for defamation under Virginia law is....
one year.
35
Under Virginia law, the right of an action shall be deemed to accrue and the prescribed period begins to run from the date....
injury is sustained, and not when the resulting damage is discovered.
36
For defamation actions, the cause of action accrues on the date....
the defamatory acts occurred.
37
In Virginia, there is no statute-tolling discovery rule for defamation claims except where...
a publisher publishes anonymously under a false identity on the internet.
38
Under Virginia law, a Plaintiff may take ________ as a matter of right.
one nonsuit
39
A party shall not be allowed to suffer a nonsuit as to any cause of action unless he does so before....
1. A motion to strike the evidence has been sustained; or
2. Before the jury retires from the bar; or
3. Before the action has been submitted to the court for decision.
40
A nonsuit may only be taken for actions then....
pending before the court.
41
Claims that have already been dismissed with prejudice will not be considered part of...
a pending action.
42
Under the doctrine of unclean hands, a party seeking equitable relief must himself not have been....
guilty of inequitable or wrongful conduct, and the wrongful conduct must relate to the claim being asserted.
43
Specific performance is an equitable remedy, which...
compels the performance of a contract in the precise terms agreed upon
44
The court will not pursue a remedy of specific performance if...
there is an adequate remedy available at law.
45
To rescind a contract based on fraud, there must be statements of facts, not....
mere matters of erroneous opinions.
46
To support a suit for temporary injunction, one must allege...
facts showing that they have a recognized legal fact and they will suffer an irreperable harm without an injunction.
47
A sheriff may only serve process in her county/city or...
in a contiguous county/city.
48
Process must be served by....
any person of age 18 or older and who is not a party or otherwise interested in the controversy.
49
A foreign corporation properly registered to do business in Virginia may be served through...
any officer, director, or registered agent of the foreign corporation.
50
If defendants receive process in a timely manner, but it is improper....
the means of service are of no consequence (curative statute).
51
Process must be served within....
one year of filing suit.
52
Forgiveness of improper service does not pertain to cases of....
divorce and annulment.
53
The SoL for personal injuries is....
2 years.
54
Venue may be proper....
where a Defendant resides, where a Defendant has appointed a registered agent, or where the cause of action arose.
55
A Defendant must object to venue within....
21 days.
56
In objecting to venue, a Defendant must set forth...
where he believes venue to be proper.
57
If a cause of action does not set forth a valid cause of action as a matter of law, the Defendant should file...
a demurrer, which tests the legal sufficiency of a complaint.
58
If, through discovery, it is established that a Clamaint has no facts to support a valid cause of action, the Defendant may proceed by filing...
a motion for summary judgment.
59
No deposition can be used to support a motion for summary judgment unless...
all parties agree.
60
If a Defendant believes he was improperly joined as a party, he should file....
a plea of misjoinder.
61
If a Defendant fails to timely file responsive pleadings, he may be...
in default.
62
The court has discretion to grant leave for a party to file late pleadings for...
good cause shown.
63
Virginia's discovery rules allow the taking and using at trial of a physician's .....
deposition, even if they are available for trial.
64
(TRUE/FALSE): The first appeal of a real property claim originally heard in a Virginia Circuit Court must be filed in the Virginia Supreme Court.
FALSE.
## Footnote
all civil appeals go to the Virginia Court of Appeals as of right. No petition is required.
65
To obtain an injunction, the moving party must show...
(1) that the Plaintiff has suffered **irreparable** injury;
(2) that remedies available at law, such as monetary damages, are **inadequate to compensate for the injury**;
(3) that the remedy in equity is warranted upon consideration of the **balance of hardships between Plaintiff and the Defendant**; and
(4) that the permanent injunction being sought would **not hurt public interest.**
66
Civil appeals from a final judgment in Circuit Court go to the...
Virginia Court of Appeals, and are as-of-right.
67
If a judge sustains a demurrer and dismisses a Complaint, it is a...
final order.
68
If a judge's ruling on a demurrer is a ruling of fact, the appellate court will review that ruling....
de novo, without any deference to the lower court's ruling.
69
The mitigation of damages defense need not be raised in a responsive pleading because...
it is not dispositive of the action.
70
The issue of failing to file within the statute of limitations can be raised only as...
an affirmative defense, set forth in a responsive pleading.
71
A statute of limitations plea should not be raised in....
a demurrer.
72
(TRUE/FALSE): There is no limiting requirement that the statute of limitation defense be raised only in an answer.
TRUE.
73
The general rule for attorneys fees is that...
each side pays its own fees, unless otherwise provided by contract or statute, or in the Court's discretion for fraud.
74
A trial court is barred from considering discovery depositions in a motion for....
summary judgment.
75
A party wishing to preserve an objection must....
make a timely objection and state the grounds for such at the time of the Court's ruling.
76
(TRUE/FALSE): A brief in opposition to a party's motion in limine is sufficient to preserve that objection.
TRUE.
77
The equitable defense of laches typically will not apply if there is...
a specific statute of limitations for a claim.
78
Laches requires...
knowledge of a claim before the running of time.
79
The SoL for fraud is...
2 years.
80
The SoL for fraud accrues when the Plaintiff....
becomes aware or should have become aware of the fraud.
81
When the last day of a court deadline is on a Saturday, Sunday, or legal holiday, the party will be able to file....
the following day.
82
In an appeal from GDC, the Circuit Court's trial is...
de novo, and new evidence may be introduced.
83
The Court of Appeals reviews the trial in circuirt court and determines whether...
the circuit court judge erred.
84
In addition to requesting injunctive relief in a Complaint, a Plaintiff should also file...
a motion for a temporary injunction.
85
As a condition of granting a temporary injunction, the court is likely to require the moving party to...
post a bond.
86
The ground of the Virginia long-arm statute providing jurisdiction over a party who causes tortious injury in the Commonwealth by an act or omission outside the Commonwealth is only satisfied if...
the Defendant also **regularly** does or solicits business, or derives substantial revenue from goods or services sold in the Commonwealth.
87
A misnomer is a...
mistake in a party's name.
88
Misjoinder is....
when the wrong party is sued.
89
The general rule is that the statute of limitations will be tolled if....
Plaintiff misidentified the correct party.
90
When a person who's entitled to bring a cause of action is an infant, the statute of limitations does not begin to run....
until the infant reaches the age of majority.
91
(TRUE/FALSE): Sanctions may be imposed for frivolous pretrail motions, unnecessary delay of proceedings, and insulting langauge.
TRUE.
92
If one files a claim for interpleader, the court may enter an order...
restraining all claimants from instituting any proceeding in a Virginia court affecting the property involved until further ordered by the court.
93
Which rule does Virginia follow for attorneys' fees?
The American Rule.
94
(TRUE/FALSE): A party may voluntarily waive subject matter jurisdiction by entering a general appearance in a Virginia Circuit Court case.
FALSE. SMJ may never be waived. This type of jurisdiction is granted only be the general assembly.
95
To appeal a civil judgment from a Virginia Circuit Court, a party must file a notice of appeal in the Circuit Court and then:
File an Appeal Brief in the Virginia Court of Appeals.
96
At the end of a Virginia Circuit Court trial, when the losing party wishes to file a motion to set aside the verdict, how long do they have to do so?
Within 21 days of the entry of judgment.
| (Breast of the Court)
97
Can a party's responses to RFAs be submitted in support of a Motion for Summary Judgment?
YES -- even if they are in whole or in part based on the discovery depositions.
98
A notice of appeal must be filed in the Circuit Court within....
30 days from the entry of the final order being appealed.
99
An error in the trial court may only be considered on appeal if it was...
properly preserved by specific an timely objection, or if the appellate court applies the ends-of-justice exception.
100
Can one be estopped from objecting to SMJ?
No -- to "estop" would mean that it could be waived or limited, but SMJ cannot be.
101
Where a party timely files an appeal in the wrong appellate court, it will be....
transferred to the correct court, not dismissed.
102
A writ of mandamus orders...
a governmental body to perform a specified ministerial act.
103
A ministerial act is one that requires....
no discretion, so long as the requirements of the application has been met.
104
An appeal from a zoning board decision may be filed in....
the circuit court of the board's locality.
105
The circuit court may hear claims that are worth at least….
$4,500.
## Footnote
Concurrent with GDC up to $25,000 (else PI/WD where it is up to $50,000).
106
As a general rule, a contract will be governed by...
the jurisdiction where the contract was made/executed.
107
If, at the time of execution, parties intend for a contract to be performed in another jurisdiction, the law that governs is....
the place of performance, rather than the place the contract was formally executed.
108
A declaratory judgment is an action designed to permit one to have....
a judicial determination of his rights and/or responsibilities before he has suffered any injury or done a wrong to another.
109
Declaratory judgments must involve disputes....
at the "crossroads of controversy," meaning there must be more than just a disagreement.
| i.e., must be on the brink of a cause of action.
110
VA courts have held that the declaratory judgment remedy should....
not be used when alternative remedies are available.
111
Unlawful detainer is a claim that tries the...
right to possession of real estate, not title.
112
An unlawful detainer action is typically brought to recover possesion of a property from either...
1. A Defendant who unlawfully gained possession, or
2. A Defendant who had lawful possession but lost that right.
113
A bill to quiet title is an equitable action employed to have the court to....
determine title to property.
114
A bill to quiet title should not be used when there is...
an adequate remedy at law [ejectment].
115
An ejectment action is an action at law for trying...
title to land.
116
A Plaintiff in an ejectment action must recover on...
the strength of her own title, not on the lack of the title of the Defendant.
117
A potential juror may be stricken from the panel, for cause, if...
1. They are related to a party;
2. They have an interest in the case being tried; or
3. If they have expressed an opinion or bias in the matter.
118
Virginia's GDCs have exclusive subject matter jurisdiction for claims up to and including:
$4,500.
119
Under Virginia Law, an agreement to indemnify a party does not extend to...
willful misconduct or a knowing violation of the law.
120
An action in detinue requires alleging and proving the following elements:
(1) the Plaintiff has a current right in the property;
(2) the Plaintiff has an immediate right to possession;
(3) the property is capable of possession;
(4) the property has value; and
(5) the defendant had possession of the property prior to filing suit.
121
If one seeks pretrial seizure of property [prior to detinue], she must...
post double bond.
122
If Plaintiff wins in GDC and Defendant appeals to the circuit court, will the Plaintiff's ad damnum be limited to that of their original Complaint?
No -- When a Defendant appeals, the Circuit Court is granted discretion to permit Plaintiff to amend her complaint to an amount higher than the GDC limit.
123
Substituted service may be effected by delivering a copy of process and giving details of the claim to....
a non-temporary resident at the Defendant's home who is 16 years of age or older.
124
As to equity causes of action only, a party can seek review of final decree for up to...
6 months after entry, via a Bill of Review.
## Footnote
This trumps the 21-day "breast of the court" rule.
125
A Bill of Review may be filed, without leave of court, to....
correct errors apparent on the face of record.
126
A Bill of Review may be filed, with leave of court....
based on new evidence.
127
Is a divorce a matter in equity?
Yes
128
If a party against whom a request for admission does not respond within 21 days after service of the request with a denial, the matter is taken as...
admitted, unless the court permits withdrawal or amendment of the admission.
